09.17.20

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

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Our Move Further Away From the World Wide Web, the Browser Monopolies, HTTP, and HTML

    The World Wide Web (WWW) is going down a bad path and a clearly regressive direction; the solution isn't going 'retro' but exploring more sophisticated systems which are robust to censorship (localised or globalised) and downtime (related to censorship) while reducing surveillance by leveraging encryption at the endpoints



  2. Important Issues Not Entertained in the Community, Especially Critics of the Status Quo

    here's corporate infiltration inside communities (for oligarchy hunts volunteer, unpaid labour) and those who speak about that as a threat to our cause and objectives are painted as misguided outcasts who must be ignored



  3. Internet Origins of the Mob

    Reprinted with permission from Daniel Pocock



  4. When Proprietary Software Users Dictate the Freedom-Leaning Communities

    Fedora doesn't care about software freedom and its steward (or parent company) is sometimes imposing proprietary software on staff; they've quit caring



  5. In 2020 Onwards 'Open Source' is Just a Marketing Ploy of Monopolies, Unlike Free Software

    More people are nowadays seeing or witnessing 'Open Source' for what it truly is; the term has become a misleading marketing term of proprietary software firms looking to rebrand as "ethical" (e.g. by sharing some code with other proprietary software firms, over proprietary platforms such as GitHub)



  6. Microsoft: The Year After We Bought GitHub There Was a Significant Decline in Number of New Projects on GitHub

    Microsoft has just admitted that in 2019 GitHub saw a very significant decline in number of new projects (and users, which it is conveniently miscounting by adding 'phantom' ones) on the site. Just what we had heard before they confirmed it (and they foresaw this effect of the takeover, hence the lies about "loving" Linux).



  7. Social Control Media is a Passing Fad, We Should All Go Back to Blogging and Subscribing to RSS Feeds

    The whole "social control media" phenomenon has been oversold or promoted using lies; in reality, as a mountain of evidence serves to show, it's a way to manage society at a macro scale



  8. As Andrei Iancu Removes Himself From the Patent and Trademark Office All Eyes Are on Biden's Next Nomination

    Patent zealots and their front groups already lobby Joe Biden to put one of them in charge of the U.S. Patent and Trademark Office; we'll soon see if Joe Biden "means business" or simply means monopoly/large corporations (and their law firms/departments)



  9. Data Point: GNU/Linux Share in Desktops/Laptops Nearly Tripled in the Past Decade, Peaking This Past Month (All-Time High)

    Contrary to what some publishers try to tell us, GNU/Linux is still growing and mostly at the expense of Windows



  10. IRC Proceedings: Saturday, January 23, 2021

    IRC logs for Saturday, January 23, 2021



  11. Links 24/1/2021: Nouveau X.Org Driver Release and GhostBSD 21.01.20

    Links for the day



  12. InteLeaks – Part XXX: Harbor Research's Pseudo-scientific 'Research' for Intel, Bizarrely Suggesting a Microsoft Partnership for a Domain Largely Controlled or Dominated by Linux

    The full document that Intel paid for and in turn used to justify cracking down on Free software (obliterating Free software-based workflows inside Intel), instead outsourcing all sorts of things to proprietary software traps of Microsoft



  13. Chromium and Chrome Are Not Free Software But an Example of Microsoft-Fashioned Openwashing Tactics

    It's time to reject Google's Web monopoly (shared with other companies but still an oligopoly); removing its Web browser would be a good start



  14. Links 23/1/2021: Chromium Pains and New Debian Maintainers

    Links for the day



  15. InteLeaks – Part XXIX: Harbor Research Did Not Produce a Study But an Elaborate Hoax for Intel, Suggesting Microsoft Partnership and Outsourcing Based on Zero Evidence and No Solid Rationale

    The pseudo-scientific ‘report’ from Harbor Research is more of the same nonsense we’ve grown accustomed to; unethical if not rogue firms are being paid to lie — or to perpetuate falsehoods which someone stands to gain from



  16. Video: The State of Communities Surrounding GNU/Linux Distributions

    A discussion about the state of volunteer efforts going into the development, maintenance (in the 'maintainership' sense) and support/advocacy of GNU/Linux distros



  17. IRC Proceedings: Friday, January 22, 2021

    IRC logs for Friday, January 22, 2021



  18. InteLeaks – Part XXVIII: Intel Served Report From Microsoft Boosters, Who Provide No Actual Evidence and No Science to Back Their Supposed 'Findings'

    Findings and recommendations from Harbor 'Research' aren't based on any scientific methods, just perceived loyalty, branding, and a bunch of unsourced quotes (from unnamed people with ridiculous job titles like a soup of buzzwords)



  19. Erosion of Communities, Ascent of Corporate-Industrial Fake Communities

    Despite the attempts to manipulate/trick developers (and sometimes users) into becoming unpaid workforce of for-profit companies, there's an exodus back to real communities, which aren't subjected to the fury of wealthy shareholders who utterly dislike or simply don't care for software freedom



  20. The Corporate 'Left' and the Open Source Pseudo 'Movement'

    President Biden may not be as bad as his predecessor, but that hardly means very much; software freedom is still threatened, along with many other things



  21. Links 22/1/2021: pfSense Plus, Endless OS Foundation, and Many Laptops With GNU/Linux

    Links for the day



  22. The Linux Foundation is Trying to Obscure Racism Using Microsoft-Inspired Tactics (Vouchers Disguised as Actual Money)

    The Linux Foundation and its PR stunts don’t help combat racism; one might argue that the Foundation is leveraging racism, which prevails in the US, to paint itself as benevolent and caring (offering immaterial things and self-serving press releases)



  23. InteLeaks – Part XXVII: 'Pulling a Nokia' on Intel (Outsourcing to Microsoft)

    The recommendation of an Intel marriage with Microsoft (even in units that deal mostly with Linux) is an insulting slap across the face of developers employed there; we take a look at recommendations made to IoTG (Intel) by a firm with Microsoft orientation



  24. IRC Proceedings: Thursday, January 21, 2021

    IRC logs for Thursday, January 21, 2021



  25. InteLeaks – Part XXVI: Harbor Research is Horrible 'Research', Lacking Actual Technical Background

    Having looked at the members of staff of Harbor Research (individually), it seems clearer now why they have an affinity for Microsoft and why they're directing Intel to liaise with Microsoft and become a prisoner of Microsoft (even in areas where Microsoft is increasingly irrelevant)



  26. Links 21/1/2021: Raspberry Pi Pico, Ubuntu 21.04 Picks GNOME 3.38, KDE Plasma 5.21 Beta

    Links for the day



  27. How a Newly Inaugurated President Biden Can Advance Software Freedom (If He Actually Wishes to Do So)

    Techrights has 'Four Suggestions' to President Biden, the 46th 'front end' of American plutocracy



  28. InteLeaks – Part XXV: Intel's Brain Drain Leads to Unusual Measures

    As the company once known as 'chipzilla' loses its relevance and dominance in the market it's reaching out to retired people, trying to get them back onboard



  29. Hey Hi (AI) is Just a Trojan Horse for Illegal Software Patents, According to EPO Management and Litigation Firms It's in Bed With

    The longtime pushers or the lobby of patent profiteers just carry on pushing for software patents, nowadays latching onto the inane and unwarranted media hype around Hey Hi (AI) — a hype wave that was co-opted by EPO management to grant unlawful patents



  30. The Central Staff Representatives (CSC) of the EPO Are Petitioning to End the Assault on EPO Staff

    The EPO, just one month after the staff went on strike, is about to receive a compelling petition to stop the assault on EPO staff


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