Hungary’s Participation in the Unitary Patent Package on Hold following Decision of the Hungarian Constitutional Court

Dr Catherine Jewell and Anna Hatt | July 2018

In 2017 the Hungarian Government requested that the Hungarian Constitutional Court provide an opinion as to whether the Unified Patent Court Agreement (UPCA) would be compatible with the country’s constitution. 

The Unified Patent Court Agreement is a central part of the Unitary Patent Package.  For more information on the Unitary Patent Package, see our article here.  Once the Unitary Patent Package has entered into effect, certain granted patents would be litigated in the Unified Patent Court (UPC), rather than in the National Court of a Member State. 

The Hungarian Court’s decision issued at the end of June 2018, and in essence the Court considered that the transfer of exclusive jurisdiction to an international institution not explicitly foreseen by the EU treaties, even in the framework of enhanced cooperation among EU Member States, would be incompatible with the constitution.

This decision may mean that Hungary does not ratify the UPCA and therefore does not participate in the Unitary Patent Package.  Alternatively, it may mean an amendment to Hungary’s constitution.

The Hungarian decision has no formal effect on the entry into force of the Unitary Patent Package.  At present, the remaining formal requirement for the system to proceed is ratification of the UPCA by Germany.  However, there is also a pending Constitutional Court challenge in Germany which must be overcome before ratification there can be completed.

We will continue to issue updates regarding the Unitary Patent Package as matters develop.