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

IBM's Alderon as "Silent Layoffs", Not Just Bailout From Taxpayers
Seeing through the noise
Laptop Bricked After Microsoft Certificates Expiry
Is "Jim" dead?
Five Years After Its Formation Libera.Chat Has the Most Simultaneous Users in Internet Relay Chat (IRC)
netsplit.de also measures the cross-network total at over 300k, probably for the first time in years
 
Week of Microsoft Layoffs, Maybe Record-Breaking Scale
They will mislead about the scale
Links 28/06/2026: More Om Malik Eulogies, Cloudflare Promotes Web Browser Monocultures
Links for the day
'Modern' Web: "Stop! You Are Browsing Too Fast!"
Can the Web ever recover from this?
Pensions Tied to Ponzi Schemes Are Themselves Ponzi Schemes
Pensions are becoming more like that as well
Monoculture in Europe as National (or Continental) Security Threat
We need more browser diversity
Canada 5-0: GNU/Linux Rises to 5.0%, Windows Rapidly Falls to New Lows
Will we be seeing 6-0 (6%) by year's end and will Microsoft be shown two red cards?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 28, 2026
IRC logs for Sunday, June 28, 2026
Gemini Links 29/06/2026: Sansieviera, HiFi, and Self-Signed Certificates
Links for the day
Outsourcing is Not Security
Outsourcing to Microsoft is the opposite of security
Links 28/06/2026: Turkey's State Broadcaster Suspends Commentator, Journalists Under Attack
Links for the day
Debugpoint.com Turns to LLM Slop for 'Help'
This is how sites die
Follow the Real Security Experts
Werner Koch
Assessing the Upcoming (July) Proprietary/GAFAM Cuts
The total (or %) matters to us because it can help shed light on what scale of layoffs to expect next week
Microsoft Lunduke Does Not Correct or Clarify Misinformation That He Posted (or Repeats It Instead)
Not the first time [...] detracts and/or distracts from legitimate criticisms
How Not to Do Security
Asking Microsoft for permission
Gemini Links 28/06/2026: Simulation Theory and Pursuit of Novelty
Links for the day
The Slop 'Religion' is Dying: From Widespread (Paid-for) Hype to Widespread Hate
Wait till "sentiment" in Wall Street - not just general (public) "sentiment" - shifts strongly against slop
For Whistleblowers' Sake, Choose Hosting Platforms Wisely
Techrights is hard to 'sedate'
How to Discreetly Leak Important Information to Techrights
Some years ago we published multi-part series about how to contact us securely
Expect Many More Whistleblowers From Microsoft
We envision many pissed off workers from Microsoft will become whistleblowers after next week's giant wave
Efforts to Resume Progress on FreeJS, LibreJS, and Reduce Dependence on Microsoft
It's still in a relatively early development stage
Whistleblowers Improve the World
we should appreciate and respect whistleblowers
Microsoft Windows Plunges to All-Time Lows in Japan
Microsoft is disintegrating; many people no longer use (nor need) Windows
GNU/Linux Turns 43 in 3 Months From Now
The Manifesto of the Free software movement (GNU Manifesto, 1985) turned 40 last year
SLAPP Censorship - Part 121 Out of 200: One Day We'll Discover What Company or Rich Person/s Funded the Lawfare Against Us
Even if the law firm shoulders some of the losses, then it is in effect an investor in the lawfare, according to established caselaw
Working on "Linux", But on Microsoft's Payroll
Under the totally false guise of "security" those same people are now promoting TPMs and other horrible things
Links 28/06/2026: Energy Crunch, EEE by Microsoft, and John Bolton Pleads Guilty in Dictatorship of SLAPPs
Links for the day
Jim Not Dead Yet
Let's wait a few more days
Microsoft Layoffs So Big They Cannot Even Wait for 'D-Day' (July 1)
"Layoffs at Xbox Appear to Have Already Begun, with Multiple Compulsion Games Employees Announcing Their Departures"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 27, 2026
IRC logs for Saturday, June 27, 2026
Links 28/06/2026: Heatwave in Europe and Media Failing to Actually Criticise Power
Links for the day
Gemini Links 28/06/2026: Poems, Photographs, and Neoliberalism as Religion
Links for the day
SLAPP Censorship - Part 120 Out of 200: Garrett Undermines His Own Application Because His Friend Graveley Failed to Accomplish What They Had Both Aimed For
Hold off the "popcorn"
Don't Settle for Slop
Slop is a bit of a symptom of where society is told to go
Gemini Links 27/06/2026: Photography From Interlaken to Shynige Platte, Slop 'Code', and Distro Hopping
Links for the day
TIGER COMPUTING LTD Sent Us Threats Half a Decade Ago (Because of Criticism of Their In-House Debian Developer), Now the Company's Debt is Deepening
So what is they're connected to the military?
GNU/Linux in Mexico Near All-Time High
With all the tourists packing the place (or hotels) we can imagine big changes to be seen next month (many portable devices)
Summer Plans in Tux Machines
July is nearly upon us
Gopher (Protocol) Turns 35, Gemini is 28 Years Younger
Bad technology comes and goes very fast
Be Like Stallman and Assange, Not Like MElon or Bill Epsteingate
these people treat women like worse than dirt
Exposure Leads to More Whistleblowing
In areas like IBM or European patent affairs we've always earned a lot of trust
European Patent Office (EPO) Series Will Run Well Into July
We still have a very significant chunk of EPO "trench" stories
Links 27/06/2026: Journalists Kicked Out of China, Torture in Iran and Turkey
Links for the day
How Microsoft is Preventing or Slowing Down Adoption of GNU/Linux (Fake 'GNU' Controlled by GitHub in Windows, WSL, Sabotage at Boot Level, Not Limited to Dual-Booting)
Microsoft is still at it
Rising Computer Prices Good News for GNU/Linux and Free Software
This can greatly assist the adoption of BSDs and GNU/Linux
Links 27/06/2026: More Restrictions on Social Control Media and Russia is Leveraging Cellebrite/Back Doors
Links for the day
Saying "No" is Not a Bad Thing
Society benefits from people who say "No!" even when it seems impolite (and possibly inconvenient) to say so
Next Week's "Bloodbath" at Microsoft Includes "Silent Layoffs" (Which Microsoft Won't Count)
The notion of "silent layoffs" is fast becoming the "new normal"
Akira Urushibata on the Likely False (Unverifiable) Claims Anthropic Makes About Defects for Marketing/Hype
Some pro-LLM person has managed to derail the discussion on this topic
European Patent Office (EPO) Series: "Team Campinos" in Split
The EPO team was of course headed by Campinos himself who delivered a "forward-looking" keynote speech to the assembled audience consisting mainly of Administrative Council delegates from the national IP offices
Supporting Women in the Free Software Community
The common theme here is abuse of women
Left IBM After Many Years, Came to Microsoft/XBox, Now Silent Layoffs at XBox
many inside XBox will have their last day next week
Gemini Links 27/06/2026: Homeworlds and Tarot Cards
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 26, 2026
IRC logs for Friday, June 26, 2026