Bonum Certa Men Certa

FFII Press Release: Germany Can No Longer Ratify the Unitary Patent Due to Brexit and the Established AETR Case-law, says FFII

Original here




Berlin, 19 feb 2020 — Germany cannot ratify the current Unitary Patent due to Brexit and the established AETR case-law. The ratification of the UPC (Unified Patent Court) by Germany would constitute a violation of the AETR case-law, which was used during the EPLA negotiations in 2006 to consider a deal with non-EU countries, such as Switzerland. FFII says that if Germany proceeds with the ratification, it will open up the possibility for a second constitutional complaint. The Unitary Patent signals the third attempt to validate and expand software patents in Europe.

Following Brexit, the UPC has become a different kind of agreement, whose validity passes now under the supranational jurisdiction and competence of the EU (Articles 216/218 TFEU). UK is now a “third state” within the meaning of AETR case-law, under the current transition period of the Withdrawal Agreement and, as such, the authoritative legal precedent of AETR applies now.

If Germany is misled by the patent industry and ratifies the UPC, this would be a serious breach of procedure under EU law by the German government, and a new constitutional complaint will be launched.

The “AETR” case-law (22/70) of the Court of Justice of the EU, makes clear that:

“Each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope.

Accordingly, the EU has the competence to sign an agreement with the UK relating to the subject matter covered by the UPC. The fact that the UK has withdrawn from the EU, clearly brings the matter within the competence and supranational jurisdiction of the EU.

This practically means that the ratification procedure for the Agreement on the Unified Patent Court (UPCA) must now come to an end, as that Agreement no longer applies due to the current significant changes (i.e. Brexit) in the membership requirements of its own ratification rules. In addition, according to the Common Rules of Procedure of the German Federal Ministries (Gemeinsame Geschäftsordnung der Bundesministerien), section 43 (1) number 8, calls for the presentation of the connections to and the compatibility of German legislative initiatives with the EU law.

It follows that the German Government must examine first whether or not  the UPCA can still be compatible with EU law, and in particular, now that the UK has withdrawn from the EU. In view of the established case-law in  “AETR” and the exit of the UK from the EU, the UPCA is clearly no longer compatible with EU law.

In this respect, as the question of compatibility of UPCA with EU law has already been addressed to the highest court in Germany, the German Constitutional Court is now required to refer the matter to the CJEU for a preliminary ruling under the provisions of Article 267 TFEU, before the German judges reach a decision.

The Unitary Patent is a highly controversial and extreme issue, as it allows new international patent courts to have the last word on the development and application of patent law and industrial property monopolies including, more seriously, the validation and expansion of software patents, that is the key sector on which whole industries and markets depend. It also leaves the Court of Justice of the EU in the weakest position to have only a say in few limited tech matters. Such an unprecedented takeover of the EU’s institutional powers by external, international organizations, of which the Unitary Patent system consists, is dangerous and can undermine permanently democratic governance and with it, economic development and sustainability in entire states in Europe.

Links

  • AETR caselaw on EUR-Lex: Judgment of the Court of 31 March 1971 – European Agreement on Road Transport – Case 22-70: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61970CJ0022
  • Council document on ‘Institutional aspects of the EC’s accession to the European Patent Convention’: https://data.consilium.europa.eu/doc/document/ST-13742-2001-INIT/en/pdf
  • Council document on ‘Request for an opinion by the European Court of Justice on the compatibility under the EC Treaty of the envisaged Agreement creating a Unified Patent Litigation System (UPLS)’: “IV. COMMUNITY COMPETENCE […] (32) As regards European patents, the aim and content of the measure consisting in the establishment and organisation of a specialised jurisdiction of an international nature for cases concerning patents, are essentially a matter that falls within Member States’ competence. However, some of the provisions of the envisaged Agreement relate to matters for which the Community has already exercised its internal competence by laying down common rules. In the light of the case law of the Court of Justice, Member States no longer have the right, acting individually or collectively, to enter into obligations with third countries which may affect these rules or alter their scope (ref19 AETR)” https://data.consilium.europa.eu/doc/document/ST-10571-2009-INIT/en/pdf
  • Unitary patent protection systems in Europe, Masahiko Matsunaka: ” Since the EPLA establishes the European Patent Court and confers jurisdiction to the court, it obviously affects the Brussels Regulation. Moreover, the states participating in the EPLA negotiation are not only EU member states, but also include non-EU states (e.g., Switzerland). Therefore, the EU member states would have no powers to institutionalize the EPLA based on the AETR doctrine” http://www.iip.or.jp/e/summary/pdf/detail2004/e16_20.pdf
  • Oshaliang: Why Does the U.S. Supreme Court Keep Reversing the Federal Circuit? “the Federal Circuit was perceived by some as too pro-patent, with concerns that this favored weak patents and patent trolls.  Whether or not this was a concern of the Court, recent decisions of the high court have mostly cut back on patent protections that had been upheld by the Federal Circuit.” https://oshaliang.com/newsletter/why-does-the-u-s-supreme-court-keep-reversing-the-federal-circuit/
  • Permanent link to this press release: http://blog.ffii.org/germany-cannot-ratify-the-unitary-patent-with-brexit-and-aetr-caselaw-says-ffii/

Contact

Benjamin Henrion
FFII Brussels
Tel: +32-484-56 61 09 (mobile)
Email: zoobab@gmail.com
Twitter: @zoobab
(French/English)
 

About FFII

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.





Licensed under a Creative Commons Attribution 4.0 International License.

Recent Techrights' Posts

Comparing U.E.F.I. to B.I.O.S. (Bloat and Insecurity to K.I.S.S.)
By Sami Tikkanen
New 'Slides' From Stallman Support (stallmansupport.org) Site
"In celebration of RMS's birthday, we've been playing a bit. We extracted some quotes from the various articles, comments, letters, writings, etc. and put them in the form of a slideshow in the home page."
Thailand: GNU/Linux Up to 6% of Desktops/Laptops, According to statCounter
Desktop Operating System Market Share Thailand
António Campinos is Still 'The Fucking President' (in His Own Words) After a Fake 'Election' in 2022 (He Bribed All the Voters to Keep His Seat)
António Campinos and the Administrative Council, whose delegates he clearly bribed with EPO budget in exchange for votes
Adrian von Bidder, homeworking & Debian unexplained deaths
Reprinted with permission from Daniel Pocock
Sainsbury’s Epic Downtime Seems to be Microsoft's Fault and Might Even Constitute a Data Breach (Legal Liability)
one of Britain's largest groceries (and beyond) chains
 
People Don't Just Kill Themselves (Same for Other Animals)
And recent reports about Boeing whistleblower John Barnett
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, March 18, 2024
IRC logs for Monday, March 18, 2024
Suicide Cluster Cover-up tactics & Debian exposed
Reprinted with permission from Daniel Pocock
Gemini Links 19/03/2024: A Society That Lost Focus and Abandoning Social Control Media
Links for the day
Matthias Kirschner, FSFE: Plagiarism & Child labour in YH4F
Reprinted with permission from Daniel Pocock
Linux Foundation Boasting About Being Connected to Bill Gates
Examples of boasting about the association
Alexandre Oliva's Article on Monstering Cults
"I'm told an earlier draft version of this post got published elsewhere. Please consider this IMHO improved version instead."
[Meme] 'Russian' Elections in Munich (Bavaria, Germany)
fake elections
Sainsbury's to Techrights: Yes, Our Web Site Broke Down, But We Cannot Say Which Part or Why
Windows TCO?
Plagiarism: Axel Beckert (ETH Zurich) & Debian Developer list hacking
Reprinted with permission from Daniel Pocock
Links 18/03/2024: Putin Cements Power
Links for the day
Flashback 2003: Debian has always had a toxic culture
Reprinted with permission from Daniel Pocock
[Meme] You Know You're Winning the Argument When...
EPO management starts cursing at everybody (which is what's happening)
Catspaw With Attitude
The posts "they" complain about merely point out the facts about this harassment and doxing
'Clown Computing' Businesses Are Waning and the Same Will Happen to 'G.A.I.' Businesses (the 'Hey Hi' Fame)
decrease in "HEY HI" (AI) hype
Free Software Needs Watchdogs, Too
Gentle lapdogs prevent self-regulation and transparency
Matthias Kirschner, FSFE analogous to identity fraud
Reprinted with permission from Daniel Pocock
Gemini Links 18/03/2024: LLM Inference and Can We Survive Technology?
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 17, 2024
IRC logs for Sunday, March 17, 2024
Links 17/03/2024: Microsoft Windows Shoves Ads Into Third-Party Software, More Countries Explore TikTok Ban
Links for the day
Molly Russell suicide & Debian Frans Pop, Lucy Wayland, social media deaths
Reprinted with permission from Daniel Pocock
Our Plans for Spring
Later this year we turn 18 and a few months from now our IRC community turns 16
Open Invention Network (OIN) Fails to Explain If Linux is Safe From Microsoft's Software Patent Royalties (Charges)
Keith Bergelt has not replied to queries on this very important matter
RedHat.com, Brought to You by Microsoft Staff
This is totally normal, right?
USPTO Corruption: People Who Don't Use Microsoft Will Be Penalised ~$400 for Each Patent Filing
Not joking!
The Hobbyists of Mozilla, Where the CEO is a Bigger Liability Than All Liabilities Combined
the hobbyist in chief earns much more than colleagues, to say the least; the number quadrupled in a matter of years
Jim Zemlin Says Linux Foundation Should Combat Fraud Together With the Gates Foundation. Maybe They Should Start With Jim's Wife.
There's a class action lawsuit for securities fraud
Not About Linux at All!
nobody bothers with the site anymore; it's marketing, and now even Linux
Links 17/03/2024: Abuses Against Human Rights, Tesla Settlement (and Crash)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 16, 2024
IRC logs for Saturday, March 16, 2024
Under Taliban, GNU/Linux Share Nearly Doubled in Afghanistan, Windows Sank From About 90% to 68.5%
Suffice to say, we're not meaning to imply Taliban is "good"
Debian aggression: woman asked about her profession
Reprinted with permission from Daniel Pocock
Gemini Links 17/03/2024: Winter Can't Hurt Us Anymore and Playstation Plus
Links for the day