Bonum Certa Men Certa

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

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.

Recent Techrights' Posts

Richard Stallman's Next Public Talk is on Friday, 17:30 in Córdoba (Spain), FSF Cannot Mention It
Any attempt to marginalise founders isn't unprecedented as a strategy
Stefano Maffulli's (and Microsoft's) Openwashing Slant Initiative (OSI) Report Was Finalised a Few Months Ago, Revealing Only 3% of the Money Comes From Members/People
Microsoft's role remains prominent (for OSI to help the attack on the GPL and constantly engage in promotion of proprietary GitHub)
 
Several Years After Vista 11 Came Out Few People in Africa Use It, Its Relative Share Declines (People Delete It and Move to BSD/GNU/Linux?)
These trends are worth discussing
Canonical, Ubuntu & Debian DebConf19 Diversity Girls email
Reprinted with permission from disguised.work
Links 23/04/2024: Escalations Around Poland, Microsoft Shares Dumped
Links for the day
Gemini Links 23/04/2024: Offline PSP Media Player and OpenBSD on ThinkPad
Links for the day
Amaya Rodrigo Sastre, Holger Levsen & Debian DebConf6 fight
Reprinted with permission from disguised.work
DebConf8: who slept with who? Rooming list leaked
Reprinted with permission from disguised.work
Bruce Perens & Debian: swiping the Open Source trademark
Reprinted with permission from disguised.work
Ean Schuessler & Debian SPI OSI trademark disputes
Reprinted with permission from disguised.work
Windows in Sudan: From 99.15% to 2.12%
With conflict in Sudan, plus the occasional escalation/s, buying a laptop with Vista 11 isn't a high priority
Anatomy of a Cancel Mob Campaign
how they go about
[Meme] The 'Cancel Culture' and Its 'Hit List'
organisers are being contacted by the 'cancel mob'
IRC Proceedings: Monday, April 22, 2024
IRC logs for Monday, April 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Don't trust me. Trust the voters.
Reprinted with permission from Daniel Pocock
Chris Lamb & Debian demanded Ubuntu censor my blog
Reprinted with permission from disguised.work
Ean Schuessler, Branden Robinson & Debian SPI accounting crisis
Reprinted with permission from disguised.work
William Lee Irwin III, Michael Schultheiss & Debian, Oracle, Russian kernel scandal
Reprinted with permission from disguised.work
Microsoft's Windows Down to 8% in Afghanistan According to statCounter Data
in Vietnam Windows is at 8%, in Iraq 4.9%, Syria 3.7%, and Yemen 2.2%
[Meme] Only Criminals Would Want to Use Printers?
The EPO's war on paper
EPO: We and Microsoft Will Spy on Everything (No Physical Copies)
The letter is dated last Thursday
Links 22/04/2024: Windows Getting Worse, Oligarch-Owned Media Attacking Assange Again
Links for the day
Links 21/04/2024: LINUX Unplugged and 'Screen Time' as the New Tobacco
Links for the day
Gemini Links 22/04/2024: Health Issues and Online Documentation
Links for the day
What Fake News or Botspew From Microsoft Looks Like... (Also: Techrights to Invest 500 Billion in Datacentres by 2050!)
Sededin Dedovic (if that's a real name) does Microsoft stenography
[Meme] Master Engineer, But Only They Can Say It
One can conclude that "inclusive language" is a community-hostile trolling campaign
[Meme] It Takes Three to Grant a Monopoly, Or... Injunction Against Staff Representatives
Quality control
[Video] EPO's "Heart of Staff Rep" Has a Heartless New Rant
The wordplay is just for fun
An Unfortunate Miscalculation Of Capital
Reprinted with permission from Andy Farnell
[Video] Online Brigade Demands That the Person Who Started GNU/Linux is Denied Public Speaking (and Why FSF Cannot Mention His Speeches)
So basically the attack on RMS did not stop; even when he's ill with cancer the cancel culture will try to cancel him, preventing him from talking (or be heard) about what he started in 1983
Online Brigade Demands That the Person Who Made Nix Leaves Nix for Not Censoring People 'Enough'
Trying to 'nix' the founder over alleged "safety" of so-called 'minorities'
[Video] Inauthentic Sites and Our Upcoming Publications
In the future, at least in the short term, we'll continue to highlight Debian issues
List of Debian Suicides & Accidents
Reprinted with permission from disguised.work
Jens Schmalzing & Debian: rooftop fall, inaccurately described as accident
Reprinted with permission from disguised.work
[Teaser] EPO Leaks About EPO Leaks
Yo dawg!
On Wednesday IBM Announces 'Results' (Partial; Bad Parts Offloaded Later) and Red Hat Has Layoffs Anniversary
There's still expectation that Red Hat will make more staff cuts
IBM: We Are No Longer Pro-Nazi (Not Anymore)
Historically, IBM has had a nazi problem
Bad faith: attacking a volunteer at a time of grief, disrespect for the sanctity of human life
Reprinted with permission from Daniel Pocock
Bad faith: how many Debian Developers really committed suicide?
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 21, 2024
IRC logs for Sunday, April 21, 2024
A History of Frivolous Filings and Heavy Drug Use
So the militant was psychotic due to copious amounts of marijuana
Bad faith: suicide, stigma and tarnishing
Reprinted with permission from Daniel Pocock
UDRP Legitimate interests: EU whistleblower directive, workplace health & safety concerns
Reprinted with permission from Daniel Pocock
Links 21/04/2024: Earth Day Coming, Day of Rest, Excess Deaths Hidden by Manipulation
Links for the day
Bad faith: no communication before opening WIPO UDRP case
Reprinted with permission from Daniel Pocock
Bad faith: real origins of harassment and evidence
Reprinted with permission from Daniel Pocock
Links 21/04/2024: Censorship Abundant, More Decisions to Quit Social Control Media
Links for the day
Bad faith: Debian Community domain used for harassment after WIPO seizure
Reprinted with permission from Daniel Pocock
If Red Hat/IBM Was a Restaurant...
Two hours ago in thelayoff.com
Why We Republish Articles From Debian Disguised.Work (Formerly Debian.Community)
articles at disguised.work aren't easy to find
Google: We Run and Fund Diversity Programs, Please Ignore How Our Own Staff Behaves
censorship is done by the recipients of the grants
Paul Tagliamonte & Debian Outreachy OPW dating
Reprinted with permission from disguised.work
Disguised.Work unmasked, Debian-private fresh leaks
Reprinted with permission from disguised.work
[Meme] Fake European Patents Helped Fund the War on Ukraine
The European Patent Office (EPO) does not serve the interests of Europe
European Patent Office (EPO) Has Serious Safety Issues, This New Report Highlights Some of Them
9-page document that was released to staff a couple of days ago
IRC Proceedings: Saturday, April 20, 2024
IRC logs for Saturday, April 20, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Microsoft-Run FUD Machine Wants Nobody to Pay Attention to Microsoft Getting Cracked All the Time
Fear, Uncertainty, Doubt (FUD) is the business model of "modern" media
Torvalds Fed Up With "AI" Passing Fad, Calls It "Autocorrect on Steroids."
and Microsoft pretends that it is speaking for Linux
Gemini Links 21/04/2024: Minecraft Ruined
Links for the day