The German Constitutional Court has finally set a date for the publication of a decision regarding the constitutional complaint against the German Ratification Act on the UPCA: 20 March 2020.
After the announcement of the reporting judge Justice Huber in November 2019, the European patent community already anticipated a final decision in the first quarter of 2020. This led to many expectations and preparative steps, e.g. a meeting of the UPC Preparatory Committee with the European Patent Office (EPO) regarding the implementation of the Unitary Patent package in January 2020.
By a publication of the decision without prior oral hearing at the end of this week, this deadline will be met. This wasn’t very likely for everyone who expected the German Constitutional Court to set a date for the oral proceedings first, as a decision could not have been expected on the day of the hearing. If at all, the course of the oral proceedings would have shown only how the decision would look like.
Things have changed in the last minute. Only a few weeks after UK’s withdrawal from the UPC system this decision will now set the course for the further development of the project.
A dismissal of the constitutional complaint will trigger a series of further procedural steps, i.e. the national execution of the German Ratification Act as well as the signature and deposit of the instrument of ratification in Brussels. Especially, the UPCA sunrise period can be started under the “Protocol to the Agreement on a Unified Patent on provisional application” (PPA) (further information may be found here).
Hence, as of Friday the question whether to opt out or not opt out will likely be back.