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

Microsoft Admits Business Perils as Windows Continues to Fall
‘Microsoft missed the biggest business model…’
Technical Specifications at Times of Tyrannies
Specifications (specs) must evolve with the times
In Case Rust Censors It (Rust Has Long Been All About Censorship), Here's a Critical Look at Rust's Goals
In the case of Rust, instead of "the liberation of the digital society" we have empowerment of Microsoft GitHub and of GAFAM in general. Guess who funds this...
Gemini Links 23/02/2025: Respectful Platforms Manifesto and Internet Archive
Links for the day
The Significance of the Timing of the Ridiculous Letters From Brett Wilson LLP, Acting on Behalf of People From Microsoft
A preliminary look at the timeline and what it tells us
Politicians Ought to Invite Dr. Richard Stallman and Prof. Eben Moglen to Speak About Policies, Licensing, Digital Sovereignty
Is there something in Europe other than RMS' talk this coming Monday (that we're not yet aware of)?
The So-called 'IT' Industry Became Somewhat of a Fraud Where People Equate Usage and Power Wasted With "Value" or "Success"
When did 'IT' become a weapon rather than technology/science?
Things to Like About London
Many important or "powerful" people leave near there
 
Proprietary Software is Bad for Your Health, Not Just Your Finances, Privacy and So On
It would be interesting to see some charts, based on some long-term study, comparing the general health (blood pressure, BMI etc.) of people who use proprietary stuff and people who do not
Gemini Links 24/02/2025: Osiris 0.1.0 Release (File Sharing in Gemini Protocol), NetBSD 10.1 on the Pi
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, February 23, 2025
IRC logs for Sunday, February 23, 2025
Links 23/02/2025: Democracy Backsliding and German Election
Links for the day
Joining APRIL(.org), AGM weekend, Paris, 15-16 March 2025
Reprinted with permission from Daniel Pocock
Links 23/02/2025: Zuckerberg Despised, US Government Does Not Obey Judges, France Grapples With Terrorism
Links for the day
Links 23/02/2025: Apple Back Doors, Ukraine Updates, and Gemini Leftovers
Links for the day
Recent Improvements in Techrights
minimalism works fine when the main goal is to relay information
Slopwatch: Brian Fagioli, Brittany Day (linuxsecurity.com), and Microsoft Misinformation, False Marketing
Serial Sloppers
Censored: Debian Zizian transgender vigilante comparisons in open source Linux communities
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, February 22, 2025
IRC logs for Saturday, February 22, 2025
Links 22/02/2025: OpenAI Plans to Possibly Abandon Microsoft, Facebook Doubles Execs' Bonuses While Sacking Thousands
Links for the day
Gemini Links 22/02/2025: Weekend Chill and Programming Thoughts
Links for the day
Good Explanation of Why IBM Has Chosen to Conceal Mass Layoffs (of 'Expensive' Staff) as "R.T.O." (Even For People Who Never Worked at the Office to Which They're Ordered to "Return")
Many remaining IBM (or Red Hat) workers in Europe are in "cheaper" places such as Brno
Microsoft's Serial Strangler and Matthew J. Garrett Join Forces in Trying to Gag Techrights (for Exposing Microsoft Corruption and Crimes Against Women)
Whose terrible idea was it?
Links 22/02/2025: Labour Department Investigates Microsoft Infosys Amid Mass Layoffs, Large Law Firms Caught Red Handed With LLM Slop (Defrauding Clients and Courts)
Links for the day
Gemini Links 22/02/2025: Analog Stuff, Sigil, and SSGs
Links for the day
Microsoft's Market Share in Cameroon Falls to New Lows
This means a lot of Android users (iOS is about 4 times smaller), but Android does not mean freedom
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, February 21, 2025
IRC logs for Friday, February 21, 2025
The Streisand Effect is Real
So don't be evil. Also, don't strangle women.