09.17.20

Gemini version available ♊︎

Germany Would Violate 3 International Agreements With the Unitary Patent, Says FFII

Posted in Europe, Law, Patents, Petitions at 7:04 am by Guest Editorial Team

Original by FFII

German Reichstag

Summary: Open Letter to the Bundesrat: “Germany will violate 3 international agreements with the Unitary Patent”

Dear Members of the Bundesrat,

Tomorrow Friday 17 September 2020, the Bundesrat will be asked to ratify the Unitary Patent and its Court (UPCA) (point 55 on the agenda). We would like to raise 4 objections regarding this ratification, as it carries the risk of violating multiple international agreements:

1. Software patents will be made enforceable without a debate

FFII eV represents the voice of 3000 software companies and independent software developers across Europe. Our software companies oppose the UPCA, as it will validate software patents through the caselaw of such a court, using the “technical effect” or “as such” loopholes, as confirmed by the European Commission in its 2012 Memo about the UPC. Software patents have negative effects on job creation, as small software companies don’t have the resources to defend themselves in court. Software patents are also opposed by a majority of companies in our sector, as more and more litigating companies (also called “patent trolls”) are trying to extract money.

We would like to see the UPCA being renegotiated, so that the European Court of Justice (CJEU) will have a say on software patents, as the legal basis is of the Unitary Patent is Art118 TFEU “creation of European intellectual property rights”. In 2012, the UK was allergic to the CJEU and asked for the removal of Art6-8, which would have given competence to the CJEU to decide on patent law. The patent industry also wanted their own court, and a monopoly on the interpretation of patent law. Experts are also divided on the question of whether the CJEU will be able to rule on patentable subject matter, as the UPCA has been designed to avoid the CJEU judges.

2. The UK is still listed as a “negotiating state” of the Agreement according to the Vienna Convention on the Law of Treaties (VCLT)

The United Kingdom is still listed as a country part of the Agreement, and the Ministry of Justice has resorted to very creative legal tricks in order to get the Treaty “into force”.

In June, the Ministry of Justice was saying the ratification by the UK was a requirement to get the Treaty into force:

“The fact that Great Britain broke the Convention as a result of Brexit does not prevent its implementation: the Regulations for entry into force of the Convention and its rules should ensure that all three are involved in the contract States, the Federal Republic of Germany, France and Great Britain, already participate in the judicial system at the start of the Unified Patent Court. […]

Regardless of the fact that UK approval currently exists a departure from Great Britain has no influence on the applicability of the entry into force regulations in any case because these are to be interpreted in such a way that if one of these three states can not be foreseen by anyone, the entire entry into force for the does not hinder remaining participants.

On the 21st of July, the UK has de-ratified the UPCA on the 21st of July, by sending a Note Verbale to the Council of the European Union.

The UK is still a “Negotiating State” in the sense of Article 2(e) of the Vienna Convention on the Law of Treaties (VCLT). The UK has not given its agreement for the international treaties whose texts it took part in drawing up and adopting (the UPCA and the two associated protocols) to enter into force. Thus, in addition to entry into force now being contrary to a literal reading of the relevant provisions of the Agreement and Protocols, there would appear to be no basis for entry into force under Article 24 VCLT.

As the UK is still listed as one of the countries in the UPCA Treaty as a seat of the Court for Pharmaceuticals, the Bundesrat MUST send back the UPCA to the European Commission for renegotiation. Germany cannot re-interpret the UPCA in order to unilaterally temporary redirect the workload of the London court to Paris and Munich.

3. Lack of compliance with the European Convention on Human Rights (ECHR) Art6 “a Tribunal established by law”

3a. Rules of Procedure not made by legislators

Despite the Brexit problem, the German Ministry of Justice should have presented to you, together with the bill, an analysis of the UPCA’s compliance with the ECHR (European Convention on Human Rights). The UPCA is not compliant with the ECHR, as its rules of procedure are mabe by an obscure Administrative Committee, and this is in violation with Art6 ECHR, “a tribunal established by law“, where the ECHR’s jurisprudence requires that Parliament(s) [you] should have been involved in the drafting and ratification of those rules of procedure of the court.

Any democrat will understand that this jurisprudence is in place in order to avoid the creation of rogue tribunals, put in place by the executive power. This lack of compliance has been raised in the first constitutional complaint and mentioned in the 20th March 2020 decision of the Constitutional Court, but the Court did not rule on this point.

In Coëme Vs Belgium (22 juin 2000), the court said:

According to the case-law, the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society [does] not depend on the discretion of the Executive, but that it [is] regulated by law emanating from Parliament” (see Zand v. Austria, application no. 7360/76, Commission’s report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70 and 80). Nor, in countries where the law is codified, can organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation.

ECHR, Coëme e.a./Belgique, 22 juin 2000, Req. n ° 32492/96, 32547/96, 32548/96, 33209/96 et 33210/96, §98

You can also find similar jurisprudence in other decisions:

ECHR, Pandjikidzé e.a./Géorgie, 27 oct 2009, Req. n° 30323/02 , §§ 104 et 105

ECHR, Savino e.a./Italie, 28 apr 2009, Req. n° 17214/05, 20329/05, 42113/04, §94

ECHR, Previti/Italie, 8 déc 2009, Req. n° 45291/06, §213

ECHR, Laventis/Lettonie, 28 nov 2002, Req. n° 58442/00, §114

ECHR, Zeynalov/Azerbaïdjan, 30 may 2013, Req. n° 31848/07, §30

ECHR, Momčilović/Serbie, 2 ape 2013, Req. n° 23103/07, §29

ECHR, Oleksandr Volkov/Ukraine, 9 jan 2013, Req. n° 21722/11, §151.

ECHR jurisprudence on Art6 “A tribunal established by law”

3b. Litigation will be more expensive for a single case

After the UPCA has been negotiated in 2012, this obscure Administrative Committee took the freedom to decide on the court fees. Those court fees are important for the “access to justice” and a very sensitive topic for SMEs. Those court fees will result in a 3x increase in the costs of litigation, for a simple case, and compared to the actual situation in Germany. This Administrative Committee took the freedom to decide on expensive court fees that will bare access to the Court, advised by an “expert committee” where no SME was represented, but where multinationals were (Nokia and BASF). We believe this is also in violation of the ECHR art6 “a tribunal established by law”, as this Administrative Committee does not have the power to legislate. It should have been your role as a legislator to decide what those amounts should have been.

4. UPCA is violating the “rule of law” (TFEU Art2), the EPO cannot be brought to court for maladministration

The UPCA is also violating the “rule of law” principle, enshrined in the German Constitution, and in the Article 2 of the Treaty of the Functioning of the European Union (TFEU).

The European Patent Office (EPO) cannot be brought to Court for maladministration, and there are currently 4 pending cases in front of the German Constitutional Court for violation of such principle. The Court is expected to publish a decision on those complaints before the end of this year, which might have some profound impact on the architecture of the patent system in Europe. The German Ministry of Justice does not seem to want to wait for this important decision.

If those points are not seriously addressed, we will consider asking the Court to look again at the issue by filling a second Constitutional Complaint.

Best regards,

HENRION Benjamin

President of FFII eV

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 27/9/2021: Librem 14 Reviewed, Linux 5.15 RC3 is Out

    Links for the day



  2. Links 26/9/2021: GNU Wget2 2.0.0 and MenuLibre 2.2.3 Released

    Links for the day



  3. How Basic Laws and Fundamental Rights Got Crushed in the European Patent Office

    Our next series will show the sheer hypocrisy of the EPO, hiding behind the veil of (patent) law while so shamelessly violating just about every law in the books without facing any form of accountability



  4. Regrettable Acts of Self-Harm: OpenMandriva and Mozilla Being Outsourced to Microsoft Proprietary Software and Monopoly

    In another blow to software freedom, OpenMandriva and Mozilla decide to abandon their own systems and use proprietary software from Microsoft instead



  5. Links 26/9/2021: Mozilla Spends on PR, OpenMandriva Outsourcing to Microsoft

    Links for the day



  6. IRC Proceedings: Saturday, September 25, 2021

    IRC logs for Saturday, September 25, 2021



  7. Links 25/9/2021: GNU/Linux Recognition in Mainstream Media and Wine-Staging 6.18

    Links for the day



  8. Reminder: GNU Turns 38 This Monday Around Midday (When GNU's Founder Gives Talk in Poland)

    With media and Torvalds speaking again about anniversaries (this has gone on for the past week because Torvalds wrote about it yet again), it is important to recall the announcement that got the ball rolling and basically started it all (the GNU/Linux operating system) because it was in 1983, not 1991. We reproduce in full the announcement.



  9. Links 25/9/2021: Wine 6.18 and Chromium Complier Woes

    Links for the day



  10. [Meme] When the EPO Watches Everything ('Dissidents', Media, Etc.) and Isn't Being Watched by Anybody

    The EPO is taking Europe for a wild ride; Everything is a vehicle for the very same agenda, with nobody left to hold it accountable or ask any tough questions… (even the media is in the EPO’s back pocket or back seat)



  11. Virtual Oversight

    “eMeetings” that simulate an impression of oversight are like ‘ViCo’ to simulate access to justice; will that ever change and will oversight be restored at EPOnia, Europe’s second-largest institution?



  12. The Corporate Coup Against the Soul of the Free Software Community Is Not Over

    The erosion of community role in the development of GNU/Linux is a growing problem; part of the problem is that large corporations target technical and philosophical (perceived) leaders in coordinated smear campaigns, led by media they own



  13. IRC Proceedings: Friday, September 24, 2021

    IRC logs for Friday, September 24, 2021



  14. Links 24/9/2021: GNU Coreutils 9.0, BattlEye GNU/Linux Support

    Links for the day



  15. [Meme] 'Linux' Foundation is Greenwashing Microsoft Again, Misusing the Linux Brand Like Nobody's Business

    Microsoft has weaponised the Linux brand to dub a toxic company like itself (helping notoriously polluting companies and generating lots of waste, both directly and through planned obsolescence, inefficient software, DRM, etc.) as "green"



  16. Richard Stallman to Speak (in Person) in Poland, Dedicate the Talk to Medical Professionals

    Days after his talk in Ukraine Richard Stallman plans to do the same in Poland (just announced)



  17. Links 24/9/2021: 30 Years of Europe’s First Root Name Server, Repairability of Laptops Discussed

    Links for the day



  18. ZDNet Has Failed

    ZDNet is on the decline and its demise appears to have greatly accelerated in recent months; we take a quick look at this month's coverage and explain the conflict of interest (it's PR, not news, and it's far too shallow/blatant to simply overlook)



  19. [Meme] Some People Are Just Above the Law

    A lot of people are still flabbergasted or at least baffled/miffed to discover that some people are in effect above the law; not even Europol and Interpol can apprehend and hold them accountable; that needs to change. Had Benoît Battistelli worked for France Télécom S.A. (not the EPO), would he be arrested? What about António Campinos and his drunk son?



  20. NPR and PBS, Both Funded by Bill Gates, Try to Save Him

    Bill Gates continues to corrupt the media and corrupt social control media (such as Twitter) using his money



  21. The EPO Must Forsake Its Diplomatic Immunity and Quit Pretending It's About Patent Law (or Any Law)

    There's no sign of the EPO actually trying to obey the law and correct the mistakes of the past; to make matters worse, the existing administration adds yet more corruption to an already-massive pile while dismissing any form of oversight



  22. IRC Proceedings: Thursday, September 23, 2021

    IRC logs for Thursday, September 23, 2021



  23. Links 24/9/2021: Ubuntu 21.10 Beta, Istio 1.11.3, and More Milestones for Steam Deck

    Links for the day



  24. [Meme] President Campinos Addresses the Legacy of Battistelli's “Strike Regulations”

    A sequence of four EPO memes about those infamous and unlawful “strike regulations” that Benoît Battistelli and António Campinos have exploited to abuse thousands of workers



  25. [Meme] Bill Gates Keeps Digging Himself Deeper in the Grave Each Time He Speaks

    These sorts of ‘interviews’ with Gates’ own propaganda mills (he also pays Twitter now) aren’t going to improve his image; people aren’t infinitely gullible (Source)



  26. Linux Foundation and Other 'Diploma Mills' Say There's Demand for Their Products in Their New 'Research' (Marketing)

    The so-called ‘Linux’ Foundation (LF), together with edX, are basically marketing their services and products, but this is disguised as 'research' (a false narrative widely parroted by shallow and paid-for media partners of theirs), piggybacking brands like “Linux” and buzzwords like “Open Source” (even when they promote proprietary things, e.g. memorisation of proprietary GUIs)



  27. [Meme] The EPO's Carte Blanche and 'Diplomatic Immunity' Card

    EPO staff is being taken for another ride by António Campinos and his cohorts, whose popularity among staff has likely gone down to sub-zero levels already (even faster than Benoît Battistelli)



  28. As Expected, Minimal Pseudo Compliance From EPO Management, Adding Insult to Injury

    SUEPO Central, the core of the staff union of EPO staff (almost 7,000 workers at the EPO, most of whom are SUEPO members), has strong words about the EPO's attitude and stance, which is perhaps unsurprising but still extremely disappointing



  29. Links 23/9/2021: PostgreSQL 14 RC 1 and MidnightBSD 2.1

    Links for the day



  30. Links 23/9/2021: More UPC PR Stunts and IBM (Poettering) TPM for Linux

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts