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

Plagiarism is Hardly a New Problem, It Predates Mainstream Media Getting Paid to Whitewash It as "Training" or "Hey Hi", Then Conflate Plagiarism With "Intelligence" or Deferred "Value"
"Quantum" isn't new either; it's a 'circle-jerk' for companies without direction, only hype
Unsafe at Any Speed, "Modern" Appliances
Appliances have gotten worse
 
IBM's Senior VP of Infrastructure is Out, Silent Layoffs Still Going On
Some people imagine the CEO will also "retire" very soon (and "ahead of time")
Gemini Links 09/09/2026: Mechanical Cameras, "Super App", and Prusa Issues
Links for the day
SLAPP Censorship - Part 177 Out of 200: Manosphere Without Financial Transparency
It has moreover replaced a female worker with a male
Deadline Tomorrow (10th of September) to Appeal the EPO's Fleecing of Staff (Union to Make Legal Challenges)
Join them. Fight the good fight.
linuxstans.com Died, Then Came Back as Slop (LLM Junk)
Don't make the mistake or the assumption that merely 'dabbling in' or 'experimenting with' LLMs can be forgivable as it is a trust destroyer
Links 09/09/2026: GAFAM Fatalities in Miami International Airport, "Britain’s Health Crisis Is Becoming a Political Crisis"
Links for the day
Gemini Links 09/09/2026: "Adjective Is Subjective" and Walled Gardens
Links for the day
Links 09/09/2026: Airport 'Down' (Glasgow and Edinburgh), 'Open' 'AI' Losses Rise to Pace of 50 Billion Dollars in Losses Per Year
Links for the day
SLAPP Censorship - Part 176 Out of 200: The Sex-Obsessed Non-Experts
We heard some sexual stories
European Patent Office (EPO): No Transparency and No Paper Trail
The incompetence is that of the management, i.e. sheer incompetence of people who never examined a patent in their entire lifetime
Gemini Links 09/09/2026: Going Out, Smartphone Addiction, Mapping the Geminispace
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, September 08, 2026
IRC logs for Tuesday, September 08, 2026
Linux is Sabotaged by Botspam and Bloat (de Facto Denial of Service Attack in "Intelligence" Clothing After Rust in "Security" Clothing)
Linux is becoming orphaned, devalued and diluted by GAFAM slop
Switzerland No Longer Wants Microsoft's 'Swiss Cheese' (Back Doors)
Switzerland's patience with Microsoft is wearing thin
Debian is Not a Community, Many Debian Developers Work for Large Companies Including GAFAM (US)
"Community" sounds like friendship and amicability
Links 08/09/2026: Slop Companies Attack Some More Sites, Nvidia Bribes 'Linux' Foundation for Some More Openwashing and for Saying Slop is "Secure"
Links for the day
Gemini Links 08/09/2026: Ultra Introverts, BlackBerry Bold in 2026, and Laughing at LLMs
Links for the day
Microsoft Layoffs in October 2026
Microsoft is a market leader. In NDAs.
Links 08/09/2026: "The Green Revolution Has Failed Africa" and Palantir/Microsoft Harming NHS
Links for the day
Microsoft's Silent Layoffs Are the New Normal at Microsoft
Microsoft has a ton of layoffs all the time, but the media isn't mentioning those as no WARN notices get issued
SLAPP Censorship - Part 175 Out of 200: Implicit and Explicit Coalition Against the UK's SLAPP Industry
SRA recognises the problem
Further Transparency Problems at the EPO
The EPO was never meant to be profitable
Gemini Links 08/09/2026: "Everything Must Go", Announcing Perigee, and Presentations in a Browser
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 07, 2026
IRC logs for Monday, September 07, 2026
Alleged Manager at IBM Says "[t]here are likely to be a lot (and I meant, A LOT) of RAs before December."
"We’re getting pressure from above to put some team members on PIPs."
Links 07/09/2026: Amazon Cargo Plane Crash, .org/.net/.com Domains Considered Risky
Links for the day
Gemini Links 07/09/2026: Cheese, Text-based Life, and Icons in Swaybar
Links for the day
Freedom, Not Fame, is His Goal
pursuit of money can be not only tiring but also involve abandoning one's freedom
Links 07/09/2026: Slop Trashes Memory of Parton, Flock Surveillance Infuriates Everyone
Links for the day
Getting Better After 20 Years
Exactly two months from now this site is turning 20
EPO Hiding Cocainegate and Abandoning Transparency (Even Access to Very Basic Information is Denied)
The EPO isn't just becoming like a private for-profit corporation. It's also becoming more secretive.
Richard Stallman Has Resurrected Lost Updates
We didn't ask about it
SLAPP Censorship - Part 174 Out of 200: Cascading Scandals and a Path Towards Much-Needed, Long-Awaited Reform
Reform the UK's law, not "Reform UK"
EPO's Gema Requena Sempere (PD People) Contacted Regarding Children With Disabilities
In the coming week we may be in fruitful contact with some media regarding EPO scandals
Over at Tux Machines...
GNU/Linux news for the past day
Gemini Links 07/09/2026: Music Composition, Free Stuff, and Self-hosting Git Repos
Links for the day
IRC Proceedings: Sunday, September 06, 2026
IRC logs for Sunday, September 06, 2026