With the required two-thirds majority, Germany’s federal parliament, the Bundestag, has approved a bill for the European Unitary Patent and the Unified Patent Court, which have been planned for years. Consequently, the agreement for the patent court could come into effect in future – the related reform of the European patent system is designed to make it easier for companies to effectively protect inventions throughout Europe.
German industrial companies could particularly benefit from the reform, according to the Ministry of Justice; seeing that they account for around 40 percent of the intellectual property rights granted by the European Patent Office (EPO). Companies are expected to enjoy simplified court proceedings for protecting their patents, concentrating the proceedings in one central court – and thus eliminating the need for multiple proceedings in different EU member states. As an international organization, the Unified Patent Court based in Luxembourg is to consist of a court of first instance, a board of appeal, and a law firm; in addition, a central chamber is planned in Munich.
Critics warn meanwhile that the system might be more expensive for those companies that are subject to litigation. The EU Commission acknowledged a high cost risk for IP rights and patent disputes back in 2015. Companies that loose before the Unified Patent Court have to pay the winner’s fees. In addition to fixed sums of an estimated 11,000 euros, costs of up to 220,000 euros may be added depending on the amount in dispute. The winner’s legal costs, which could amount to up to three million euros, as well as potential compensation payments will also be incurred by the losing party.
Another point made by critics is that the unified jurisdiction could potentially make it easier to assert controversial software patents. This is one of the reasons why the Foundation for a Free Information Infrastructure (FFII) intends to file a constitutional complaint if the Bundesrat, Germany’s federal council, also agrees on the bill on 18 December. Tabea Rößner from the German Green Party agrees that issues regarding software patents must be addressed. Still, she stressed the relevance of the Unified Patent Court. Spokespeople of the major German parties CDU/CSU and SPD also emphasized that the agreement is important for the German economy and strengthens competitiveness. The EPO’s previous bundle patents were not sufficient for the European internal market, they said.
The Bundestag voted in favor of the law a second time after a first approval in 2017 was declared void by Germany’s federal constitutional court, the Bundesverfassungsgericht, due to a formal error.