Getting the European Court of Justice to Annul the Illegal and Unconstitutional Unified Patent Kangaroo Court (UPC)
Last week we mentioned the FOSDEM talk by Benjamin Henrion (FFII), who had long given very long and sometimes very short talks at FOSDEM - since the very first one (it's his hometown after all), according to him. We then produced transcripts even though he privately told us there were automated (i.e. imprecise) ones. He has since then had time to review these and, as promised, today we finally issue commentary on his talk (some names corrected in the text), which was short by design. It is concise, tailored for an audience without law degrees. Let's go through it:
[00:00] Hello, my name is Benjamin Henrion. I'm from Belgium. I've been attending all the FOSDEM since it exists when it was called OSSDem.
It's not a secret that the F was added because the person some trolls insist no longer matters asked them to do so. That's Richard Stallman.
And I work on software patents since 1998.
Can - or should - say "against", not "on". He has done a very good job. Dr. Stallman has been very worried about software patents for at least 35 years.
I'm president of a association which fought the software patent directive 20 years ago. And this directive was rejected by the European Parliament because large companies saw the Parliament could vote a lot that they didn't like. So they pushed
[00:30] they asked a member of Parliament to drop this directive and push for the central patent court in 2005.
When the EPO was run by the French. For well over 20 years the EPO has been run by French people, except for a short period of time (Brimelow, UK).
The EPO is a dictatorship of nepotism and favouritism. Successors are selected - not elected - to cover up their predecessors' misconduct.
In 2006, the Commission proposed a reform of the patent system to centralize the the patent system in Europe and notably to remove national courts. So the law is the European Patent Convention. It's an international law between several member states of the EU plus some other states like Turkey.
[01:00] The law says article 52.2 is computer programs are excluded of patentability but the next article says they are to be considered as such. And the EPO since the 1980s grants software patents anyhow using this as such loophole. In 2006, my predecessor Mr. Pilch predicted what would happen. So in July 2005, after several attempts to legalize software patents in Europe, the patent establishment changed strategy instead of explicitly
[01:30] seeking to sanction the patentability of software. They are now seeking to create a central patent court for Europe which would establish and enforce patentability rules in their favor without any possibility of correction by competing courts or democratically elected legislatures.
This is already happening in conjunction with serious EPO corruption and attacks on the EPO's own tribunals too. It is a coup.
The last sentence is very important because the whole game here is to avoid the European court of justice and basically the European Parliament said it's fine so they are not legislators anymore.
They are also bribed through revolving doors-type schemes.
The unified patent court is a very strange beast
[02:00] where they invented they created new judges without a law degree called technical judges and those it appears that those judges are in fact patent lawyers who work for Nokia in the morning and become judges in the afternoon. It's self-financed before it was financed by the EU but now it's self-financed was very, very expensive to go there to litigate or to be sued there. The EPC is not EU law so the European Court of Justice doesn't have a say
[02:30] and basically they are blocking the appeals to the European Court of Justice on those questions.
It's basically not a set of courts, it is corporations agreeing among themselves what the caselaw is and shutting out everyone else. Again, it is simply a coup. They also bribe some of the media to play along and help legitimise this coup.
Now what we discovered by litigating against it is that in the past the European Court of Justice killed the previous attempt because national courts cannot be removed of EU law and in 2017 there was a case with investment courts that had to improve EU law and the Court of Justice killed them because it's an infringement of Article 267.
[03:00] Now in October there's a company a streaming company called Roku that tried to escalate this question of EU law to the European Court of Justice and the UPC denied the questions saying there was no issue while all the experts say there is and actually it's a violation of EU law Article 277.3 where courts are forced they must escalate the questions of EU law and so in the past there was a famous case with Poland
[03:30] where the European Commission gave a heavy fine heavy daily fine to Poland for exactly the same problem.
This isn't over yet. Expect more challenges to come through Poland or citing Poland. We've privately heard of this plan.
Now that EPO staff goes on strikes and EPO management tries to cover its own criminality there is a window of opportunity (for significant change).
Now we know the European Commission is not in this file is not disclosing their eyes and the question is whether someone can go to national court and try to escalate the problem to the European Court of Justice by changing the validity not of the UPC treaty but of the Brussels one regulation with contains the fake word of common court
[04:00] so in for investment courts that's what they killed. So it's going to be my project for this year. Thank you.
For us also. We're still working on it. █