05.18.20

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Constitutional Court’s Justice Huber Reaffirms Substantial Concerns About Viability of the Unitary Patent/UPC

Posted in Courtroom, Europe, Law, Patents at 7:03 pm by Dr. Roy Schestowitz

Before JoJo's, after JoJo's: Rejection based on formality, Rejection based on substance

Summary: If UPC wasn’t already dead in the water, now we have another blow to push it down under because, as per a new interview, the “Constitutional Court’s reservations against the UPC Agreement are not limited to the formal errors which were made when passing the German ratification act in parliament. Rather, it appears that the court’s concerns also relate to the substance of the UPC Agreement.” (To quote Dr. Simon Klopschinski)

WHEN THE European Patent Office (EPO) spoke of the outcome of the FCC complaint back in March it merely quoted António Campinos cherry-picking a ludicrous political statement, in effect parroting an outrageous lie. It took the EPO more than a week to come up with that spin — something we had become accustomed to in the Benoît Battistelli days.

“Not a single blog posts in almost 2 months…”Almost nobody talks about the UPC anymore. The Daily Links from yesterday included an article we had missed from about a month ago — basically more lies from core Team UPC people. In May the UPC is hardly even named. It’s presumed dead except when they come up with ridiculous spin — distortion of facts designed to make it seem like the UPC still stands a chance. We’ve seen it all before. Bristows did that every week. Now? Not a single blog posts in almost 2 months…

Radio silence.

Hours ago, published via Thomas Musmann (Rospatt Osten Pross) was this relatively short post by Dr. Simon Klopschinski. In it there’s an English translation of relevant German text and it says:

On February 13, 2020 the German Federal Constitutional Court decided that the German law ratifying the Agreement on a Unified Patent Court is void (see here). In the meantime the Constitutional Court has issued another sentence which deals with the European Central Bank’s bond-buying programme (see here). On May 13, 2020 the daily newspaper Frankfurter Allgemeine Zeitung (FAZ) published an interview with Judge Huber, who was involved in both proceedings as judge rapporteur, on the ECB decision, in which Judge Huber also commented on the court’s UPC verdict.

In its ECB decision the Constitutional Court decided that it was not bound by a previous CJEU ruling. Therefore, the European Commission is currently thinking about initiating infringement proceedings against Germany under Article 258 TFEU. When asked by FAZ on this issue Judge Huber made the following comment on the primacy of EU law and the court’s UPC verdict…

[...]

In its decision of February 13, 2020 the Constitutional Court had left open the question whether the unconditional primacy of EU law, as stipulated in Article 20 of the UPC Agreement, violates the German constitution, even though the court held that there may be indications for such a finding (see para. 166 of the decision).

Judge Huber’s comment in the FAZ reaffirms that the Constitutional Court’s reservations against the UPC Agreement are not limited to the formal errors which were made when passing the German ratification act in parliament. Rather, it appears that the court’s concerns also relate to the substance of the UPC Agreement. Thus, if the second attempt to ratify the UPC Agreement is confined to organizing the required two-thirds majority in parliament (and some formal rectifications due to Brexit), the fate of the UPC Agreement in another constitutional complaint before the Federal Constitutional Court will remain uncertain.

“Concerned observer” soon added a comment to say: “It will be interesting to see how the question regarding the unconditional supremacy of EU (case) law is resolved with regard to Germany. One option might be to amend the Basic Law … but that might not help in all cases as it is hard to see how such an amendment could apply retroactively. However, perhaps of more immediate interest will be whether, despite the clear views expressed by the FCC, any of the UPC’s supporters will continue to lobby the German government to pass legislation enabling ratification of the UPC Agreement. The answer to this is likely to depend upon whether those supporters are prepared to actively encourage the German government to pass a law that would almost certainly be unconstitutional.”

“Justice Huber’s words can be interpreted as another nail on the UPC coffin.”Benjamin “NO Software Patents” Henrion (FFII) repeatedly told me something to that effect, citing nothing but unsourced rumours. “I have the impression that the German Government will mull the UPC through the Bundestag, ignoring Brexit, in order to get the UPC into force. And “fix it” afterwards,” he eventually wrote in Twitter. “Rumour that UPC will be back for a vote in front of the Bundestag soon #upc #Germany despite a clear violation of AETR and the UK being in,” he had said earlier. However, there’s no actual evidence of that and the above article from Dr. Klopschinski makes it more apparent that even if the Bundestag pulled a fast one it would not suffice.

Unfortunately, to us at least, the EPO still grants illegal software patents in Europe. Today’s patent courts reject those, but how many can afford the legal battle/s? Ideally we can put an end to all these ludicrous patents. As for the UPC? It’s a dead end. Justice Huber’s words can be interpreted as another nail on the UPC coffin.

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