German Constitutional Court Extends Comment Deadline On UPC Case

The German Constitutional Court (Bundesverfassungsgericht) has extended the comment deadline from 31 October to 31 December 2017 on the credibility of a challenge to the Unified Patent Court (UPC). Unless Germany ratifies the agreement, the UPC Agreement and Unitary Patent system cannot come into force. Thereof the system is "on hold" unless the BVerfG decides that the Agreement is compliant with the German Constitution.

Including the German Bar Association and the European Patent Lawyers' Association, there are 27 different organisations indicated to have been received the invitation to comment on the complaint. At first, the BVerfG set a deadline 31 October for comments. But now, the comment period has been extended to 31 December due to the request of at least some of these parties.

The BVerfG will review the case whether the complaint is admissible after 31 December. A decision on the merits will be made if the complaint is deemed admissible. Although there is no firm timetable at the moment, it is expected that a decision will be made in early 2018. A decision on the merits is unlikely to be made before the second half of 2018 if the case is admitted. Since some of the grounds of complaint allegated that the Agreement is opposite to European law, a referral to the ECJ for a preliminary deciding on terms of European law cannot be ruled out. If this comes true, there might be a further delay until 2019 or even 2020 for the final decision.