German ratification of the UPC is currently pending the outcome of a complaint in the German constitutional court. The court appears to have been taking its time in reaching a decision, prompting rumours that the court is stalling until the outcome of Brexit is clear. The issue of whether the UK can remain a member of the UPC after Brexit is currently shrouded in legal (and political) uncertainty, and may be highly dependent on whether the UPC comes into force before or after Brexit (IPKat: Can the UK become and stay a member of the UPC?). 

However, in a new development, the judge overseeing the German constitutional complaint to the UPC, Justice Peter Huber, has now deigned the rumours that the court has been delaying its decision, describing the allegation as "bullshit".

Such language from a Judge!

In the interview to Managing-IP, Justice Huber also confirms that he intends to decide the case in the first quarter of next year. Brexit is currently scheduled for the end of January 2020. It may therefore be touch-and-go whether the UPC comes into force (following German ratification) before Brexit. On the other hand, it has also been reported that, even if the constitutional complaint is overcome, the German Parliament may still delay ratification whilst the outcome of Brexit is unclear. Another false rumour?

In the interview, Justice Huber also appears a little peeved with the furore surrounding the case:

I've dealt with big issues before such as the European stability mechanism and never had a community like the IP community that has sent me a bunch of letters asking me to hurry up and trying to put pressure on the courts

But we are the top court of Germany and not here to be put under pressure. 

The issue of the UPC is certainty one to incite strong opinions, as IPKat is also all-too-aware (see comments, this Kat stands by her use of the term "esoteric" by the way..., more on this to follow). However, if Justice Huber makes anything clear, it is that German constitutional judges, at least, intend to ignore the vitriol.

The European Parliament Think Tank has issued a paper on the question of whether the UK can remain a member of the Unitary Patent Court (UPC) in a post-Brexit world. The cautious conclusion of the paper is that “it seems not per se legally impossible that the UK can stay within the UPCA [UPC agreement], even when not an EU Member State”. The problem of the UK’s continued membership of the UPCA arises from the fact that, when the UPC was conceived, nobody envisaged the UK unilaterally deciding to leave the EU.