The Federal Constitutional Court (BVerfG) still risks preventing or delaying the entry into force of German legislation. One of the potential challengers is the FFII (Foundation for a Free Information Infrastructure), which published here on 17 September an open letter to the Federal Council in which it opposed the ratification of the UPC agreement and also asked it to refer the renegotiation agreement so that the ECJ could rule on software patents. She criticised the fact that ratification is contrary to the German Constitution (Fundamental Law) and three international agreements: the Vienna Convention on treaty law (VCLT), the European Convention on Human Rights (ECHR) and the Treaty on the Functioning of the European Union (TFUE). The FFII concluded its letter by indicating that it would consider a second constitutional remedy. Some of his objections were raised in the previous constitutional complaint, but the BVerfG did not rule on this (see here). The FFII did not mention any other possible grounds for constitutional appeal (also raised in the previous but unresolved complaint), i.e. that the provisions of the UPC agreement that attest to the rule of law of the UNION violate the Basic Law; The comments of Huber J. (BVerfG reporter in the UPC case) on another case indicate that the reason could be successful (see here). As those interested in patents know, the unified patent court is still not a reality. The final ratification of the Unified Patent Tribunal (UPCA) agreement required to enter into force of the agreement concerns Germany (more than 13 ratified states, including the United Kingdom and France, which were, along with Germany, the three states that had to ratify with at least ten other states before the UPCA could enter into force – see here for ratification).
Without the UPC, which is able to impose its application, unitary patents cannot be issued. Germany has not yet been ratified. It is generally accepted that the German court will probably dismiss the opponent`s case, but it is only when it is established that the German government can make a decision on the ratification of the UPCA. There are signs that all administrative preparations for ratification are pending, but the issue of Brexit is also crucial, at least from the government`s point of view.