However, this was not the last obstacle to the European patent package. The Unified Patent Tribunal and the Unitary Patent require the ratification of at least 13 Member States, including at least Germany, the United Kingdom and France, to enter into force. Sixteen Member States have ratified, including France and the United Kingdom. But what happens after the United Kingdom, as a key party in the Tribunal`s constitution, has left the European Union? There are two scenarios. First, the United Kingdom remains a member state of the unified patent court, which, according to the latest voices of the new British government, seems unlikely. Second, the United Kingdom will not participate in the future tribunal. These two scenarios are likely to require a minor amendment to the Act constituting the Unified Patent Jurisdiction, whose ratification process could again delay this project for years in all Member States. A small hope of achieving the Court fairly quickly would be that German ratification would be completed before the end of the transitional Brexit period. In this case, the Unified Patent Tribunal and the Unitary Patent may enter into force and the United Kingdom may decide to leave or leave the project at the end of the transition period. The transition period will end on December 31, 2020 if it is not postponed, which is currently being discussed due to the coronavirus crisis. Only the future will tell us when or if the unified patent court and the unitary patent will finally come into force.
(a) the agreement refers to the Constitution and constitutes a similar regime within the meaning of Article 23, paragraph 1, third sentence, of the GG, as it contains a provision which, in its function, amounts to amending the treaties in accordance with Article 48 of the TUE. The agreement is an amendment or replacement of Article 262 of the TFUE. In Article 262 of the TFUE, the Treaty not only requires a specific legislative procedure and a unanimous decision of the Council, but also provides that the rules of competence will only come into force after approval by the Member States, in accordance with their respective constitutional requirements. For example, Member States considered the creation of a new jurisdiction for the ECJ in industrial property law to constitute serious interference with the national jurisdiction and conceived it as a ratification procedure. The German legislator considered the procedure under Article 262 of the TFUE as a special procedure for treaty modification. As part of the agreement, the States Parties amended the European Union integration programme (integration programme) of the Lisbon Treaty, effectively removing the basis of the procedure under Article 262 of the Treaty on the Functioning of the European Union and making possible a new single form of justice for EU-inspired industrial property. Indeed, the required unanimity could not be achieved either for the terms of Article 262 of the Treaty on the Functioning of the European Union, nor for the amendment to Article 48 of the TFUE. Link to the full decision of the Federal Constitutional Court: if the UK has not yet withdrawn from the UPCA, legal uncertainties could arise since it has already withdrawn from the EU.