Bonum Certa Men Certa

Ingve Stjerna's Complaint Casts a Shadow Over the Unconstitutional Unified Patent Court (UPC)

Unconstitutional not only in Germany

Summary: The Unitary Patent is un-Constitutional, according to a lawyer who used to work for UPC-friendly firms but can now say the truth about this abomination

THE ENGLISH [PDF] (and also French [PDF]) translation of the first/seminal article about the UPC complainant in Germany was published on Monday by SUEPO, the EPO's staff union.



This report is quite important. It's the basis for a potential series of filings for consideration by the courts (we are assessing eligibility to do this). Here is the translation as HTML:

06.09.2017

UPC: Düsseldorf Lawyer Stjerna lodged complaint under Constitutional Law



There has been speculation for a long time regarding who initiated the proceedings at the end of March before the Federal Constitutional Court against the UPC agreement. JUVE has now learned from sources in the political world that the complainant is Düsseldorf lawyer Dr. Ingve Stjerna.

Ingve Stjerna

At the end of August the Federal Constitutional Court called on a number of the people involved as well as third parties to give their views. These included, as well as the Federal Government, also the Deutscher Anwaltverein (DAV, the German Law Society), and Eplaw, the European Patent Lawyers Association. Both bodies of lawyers played a considerable part in the process of bringing the UPC into being.

When approached by JUVE, Stjerna had this to say: “The concession to the EPC arrangement is unconstitutional, and only the Federal Constitutional Court can put a stop to it. I hope this succeeds, because otherwise it will be the users in particular who suffer. They need a more legally secure system, and they need it urgently.”

It was only in mid-August that the grounds for the complaint were made public for the first time. Stjerna is contending that, with the UPC agreement, the Federal Republic is surrendering more sovereign rights than is compatible with the need for democracy (Art. 38 Para. 1 Clause 1 of the Basic Law (GG). In detail, he is complaining, among other issues, that the Bundestag passed the ratification laws by a simple majority. Stjerna maintains, however, that a two-thirds majority is needed. He also insists that the UPC agreement is not compatible with European law.

The question of the voting procedure in the Bundestag is regarded by UPC backers as of little consequence, because in March the Bundestag political fractions passed the UPC laws unanimously. Conversely, Karlsruhe could have called on the European High Court with regard to compatibility with Union law. In this case, there is a threat that there will be a considerable delay to the start of the UPC.

What is still unclear, however, is whether the Federal constitutional judges will allow the complaint at all. The wide range of opinions being gathered is a sign to the experts that the judges in Karlsruhe are looking at Stjerna’s complaint very intensely, and will allow it. As far as anyone knows, the judges are setting a very tight deadline on their reaction, such that an initial decision about approval is still possible this year. If the complaints are rejected, then the UPC could potentially get going next year – provided that Great Britain ratifies the UPC agreement this autumn.

Speculations proved right

Over the past few months there has repeatedly been speculation that the person behind the complaint was Stjerna, not least due to the publications by the UPC-sceptical lawyer from Düsseldorf. As early as July he had been posting detailed documents on his Website, among them minutes of meetings and questions put to the political fractions in Bundestag regarding the way they voted.

And as far back as 2012, in an interview with JUVE, he was criticising the political decision-making process with regard to the EU Patent and the new Patent Court had not been handled transparently enough for the public on a European level. He had repeatedly complained about the undemocratic behaviour by the legislature, and so developed into the main critic of the UPC altogether, even though at the time he had been working for the very UPC-friendly law firm of Simmons & Simmons. Before that he was with the patent legal practices of Bird & Bird and Reimann Osterrieth Köhler Haft (now Hoyng ROKH Monegier) in Düsseldorf.

Today Stjerna works as an independent attorney in Düsseldorf. Among colleagues, who recommend him as an experienced expert in the patent field, he also finds fellow-feeling and praise for his critical stand. “He’s putting his finger right on the spot, and he’s saying what a lot of people wouldn’t dare to say, bearing in mind the people they have as clients”, says one Munich patent attorney, for example. With regard to the new Patent Court, the German patent scene is regarded as split. For a long time, not all the attorneys have been fans of the UPC.

Hungary raising the issue too

In the meantime it has also become known that the Hungarian government has also called upon the constitutional court in Budapest for an expert opinion as to whether the UPC laws are compatible with the Hungarian constitution. This could delay the integration of the agreement into national law. This would have no effect on the start of the UPC, however, because in order to be binding it would only need France, Germany, and Great Britain to ratify the agreement. Ten other EU states are needed. In total, 14 states have already concurred with the agreement.

As soon as Germany and Great Britain have ratified the UPC agreement, the court can get going. The UPC should actually already have started in April, and a European-wide Patent Court should have been established, with a uniform protective right, the EU Patent. But Brexit, and then the constitutional complaint in March, have delayed the launch indefinitely.

(Mathieu Klos, Christina Schulze)


Techrights will soon publish more information about this UPC complaint. It's probably the beginning of a big fight between Team UPC/Team Battistelli and the rest of society, i.e. hundreds of millions of Europeans (only few of them are aware of what's going on behind their backs and behind closed doors).

Recent Techrights' Posts

GNU/Linux Reaches All-Time High in Europe (at 6%)
many in Europe chose to explore something else, something freedom-respecting
Techrights' Statement on Code of Censorship (CoC) and Kent Overstreet: This Was the Real Purpose of Censorship Agreements All Along
Bombing people is OK (if you sponsor the key organisations), opposing bombings is not (a CoC in a nutshell)
 
Technology: rights or responsibilities? - Part VIII
By Dr. Andy Farnell
Patents Against Energy Sources That Reduce Pollution
this EV space (not just charging) is a patent mine field and it has long been that way
DARPA’s Information Innovation Office, Howard Shrobe, Values Compartmentalisation But Loses the Opportunity to Promote GNU/Linux and BSDs
All in all, he misses an opportunity
Wayland is an Alternative to X
the alternative to X (as in Twitter) isn't social control media but something like IRC
BetaNews, Desperate for Clicks, is Pushing Donald Trump Spam Created by LLMs (Slop)
Big clap to Brian Fagioli for stuffing a "tech" site with Trump spam (not the first time he uses LLMs to do this)
[Meme] Social Control Media Bliss
"My tree is bigger than yours"
Links 24/11/2024: More IMF Bailouts and Net Client Freedom
Links for the day
Gemini Links 24/11/2024: Being a Student and Digital Downsizing
Links for the day
[Meme] The Most Liberal Company
"Insurrection? What insurrection?"
apple.com Traffic Down Over 7%, Says One Spyware Firm; Apple's Liabilities Increased Over 6% to $308,030,000,000
Apple is also about 120 billion dollars in debt
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 23, 2024
IRC logs for Saturday, November 23, 2024
[Meme] GAFAMfox
Mozilla Firefox in a state of extreme distress
Google Can Kill Mozilla Any Time It Wants
That gives Google far too much power over its rival... There are already many sites that refuse to work with Firefox or explicitly say Firefox isn't supported
Free (as in Freedom) Software Helps Tackle the Software Liability Issue, It Lets Users Exercise Greater Control Over Programs
Microsofters have been trying to ban or exclude Free software
In the US, Patent Laws Are Up for Sale
This problem is a lot bigger than just patents
ESET Finds Rootkits, Does Not Explain How They Get Installed, Media Says It Means "Previously Unknown Linux Backdoors" (Useful Distraction From CALEA and CALEA2)
FUD watch
Techdirt Loses Its Objectivity in Pursuit of Money
The more concerning aspects are coverage of GAFAM and Microsoft in particular
Links 23/11/2024: Press Sold to Vultures, New LLM Blunders
Links for the day
Links 23/11/2024: "Relationship with Oneself" and Yretek.com is Back
Links for the day
Links 23/11/2024: "Real World" Cracked and UK Online Safety Act is Law
Links for the day
Links 23/11/2024: Celebrating Proprietary Bluesky (False Choice, Same Issues) and Software Patents Squashed
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 22, 2024
IRC logs for Friday, November 22, 2024
Gemini Links 23/11/2024: 150 Day Streak in Duolingo and ICBMs
Links for the day
Links 22/11/2024: Dynamic Pricing Practice and Monopoly Abuses
Links for the day
Topics We Lacked Time to Cover
Due to a Microsoft event (an annual malware fest for lobbying and marketing purposes) there was also a lot of Microsoft propaganda
Microsofters Try to Defund the Free Software Foundation (by Attacking Its Founder This Week) and They Tell People to Instead Give Money to Microsoft Front Groups
Microsoft people try to outspend their critics and harass them
[Meme] EPO for the Kids' Future (or Lack of It)
Patents can last two decades and grow with (or catch up with) the kids
EPO Education: Workers Resort to Legal Actions (Many Cases) Against the Administration
At the moment the casualties of EPO corruption include the EPO's own staff
Gemini Links 22/11/2024: ChromeOS, Search Engines, Regular Expressions
Links for the day
This Month is the 11th Month of This Year With Mass Layoffs at Microsoft (So Far It's Happening Every Month This Year, More Announced Hours Ago)
Now they even admit it
Links 22/11/2024: Software Patents Squashed, Russia Starts Using ICBMs
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 21, 2024
IRC logs for Thursday, November 21, 2024