Brussels, 16th November 2022 — Nokia and Airbus got their patent lawyers elected as part-time technical judges at the forthcoming Unified Patent Court (UPC). Europe is witnessing corporate capture of its Justice system. Being ‘judges’ in the morning and ‘ patent lawyers’ in the afternoon. The Unified Patent Court is way worse than the appointment of judges in Poland. Technical judges are part-time judges (half judge, half employee of a private company) without a law degree, and are usually patent attorneys working for law firms, or inside patent departments of large corporations (Nokia, Airbus, 3M, Orange, Agfa, etc…).
Brussels, 17th Feb 2022 — The European Court of Justice has confirmed that EU law cannot be outsourced to international courts in its “PL Holdings sarl Vs Poland” decision. It is problematic for the architecture of the Unified Patent Court (UPC), which is an international court outside of the judicial system of the European Union, despite the claims of its supporters. The European Court of Justice (CJEU) has recalled in PL Holdings that Member States cannot remove disputes from the judicial system of the EU which deal with EU law:
Lastly, it follows both from the judgment in Achmea, and from the principles of the primacy of EU law and of sincere cooperation, not only that the Member States cannot undertake to remove from the judicial system of the European Union disputes which may concern the application and interpretation of EU law […].– Court of Justice of the European Union, Press Release No 190/21, Luxembourg, 26 October 2021, Judgment in Case C-109/20, PL Holdings, https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-10/cp210190en.pdf
Since EU law covering patents is the Biotech directive and the Enforcement directive (IPRED), the interpretation of EU law is removed from the judicial system of the European Union, which is composed of the CJEU and the National Courts. The PL Holdings decision follow the same line of thought as the Achmea decision, where the European Court of Justice dissolved intra-EU investment courts (ISDS). In its Achmea decision (2018), the CJEU recalled the same functional link principle with the National Courts, as in Miles (2011):
However, the arbitral tribunal at issue in the main proceedings is not such a court common to a number of Member States, comparable to the Benelux Court of Justice.
The Unified Patent Court (UPC) is a court outside of the design of the European Union, and won’t survive a legal challenge at the European Court of Justice (CJEU), says Pr Thomas Jaeger, legal researcher at the University of Vienna, who has analyzed in a paper “Delayed Again? The Benelux Alternative to the UPC” the jurisprudence of the CJEU for the last 10 years regarding international courts that have to interpret EU law. Over the last 10 years, The European Court of Justice of the European Union (CJEU) has defined a clear jurisprudence on what consists a “common court” between the Member States, via a series of decisions that all follow the same logic: international courts that have to interpret EU law have to have functional links with the National Courts of the Member States, which the UPC does not have. Pr Jaeger says in his paper:
“the narrative was invented that the UPC is a court common to the Member States. It is not, of course, because the functioning and jurisdiction of the court remained the same as envisaged for the EEUPC.”
He cites the CJEU’s Miles judgment (2011), which explains why the Benelux court is acceptable, and other models like the UPCA are not (lack of functional links with the national Courts of the Member States):
“‘It is true that the Court of Justice has held, in … Dior, that … a court common to a number of Member States, such as the Benelux Court of Justice, [is] able to submit questions to the Court of Justice, in the same way as courts or tribunals of any of those Member States.
Brussels, 9 November 2021 — The Unified Patent Court (UPC) Preparatory Committee has refused access to secret ‘Draft Declaration’ in order to bypass National Parliaments, the Brexit requirement, and the Vienna Convention on the Law of the Treaties (VCLT). The Preparatory Committee is urgently organising a Signing ceremony without any discussion in any national parliament. The UPC Preparatory Committee is afraid of a compliance check with the Vienna Convention by one of the national parliaments. FFII has requested a copy of the Draft Declaration, which aims to “re-interpret” the crystal clear requirement on the UK for the entry into force of the UPC PPA treaty. FFII was denied access by the UPC Preparatory committee, probably because this move is not compliant with the Vienna Convention on the Law of Treaties (VCLT):
From: Contact Unified Patent Court <firstname.lastname@example.org>Date: 5 nov 2021Subject: RE: [UPC website contact] Request to obtain a copy of the PPA Draft DeclarationDear Mr. Henrion,Thank you for your message and your interest in the Unified Patent Court.
Brussels, 31 october 2021 — FFII says the proposed Unified Patent Court is an SME killer with its super-expensive court fees of 20.000EUR. No small company will be able to defend itself if it is accused of violating a patent, the proposed UPC court fees will deny access to justice for small companies, the cost being 100X more expensive than the current situation in the different countries. The claim that the Unitary Patent makes the system better for SMEs is a gigantic lie. Europe is committing an economic suicide by making sure the Court is not accessible to small companies. Last week, business assocations members of BusinessEurope from Spain, Portugal, Hungary and Czech Republic refused to endorse a call to ratify the Unified Patent Court Agreement (UPCA).
In April 2021, we received a testimony from a whistleblower that this recycling of the UPC’s Impact Assessment was in fact intentional, he told to us that “Mdme Margot Fröhlingher did not want to redo the Impact Assessment of 2009 because otherwise it would have attracted critics”. Mdme Fröhlinger was in charge of the file at the European Commission till April 2012 before being offered a good job at the European Patent Office (EPO), possibly doing some “Pantouflage” and “Noyautage” after bowing to the demands of the European Patent Office (EPO) and removing the European Union institutions from playing a role. The design of 2011 patent package do not correspond to the one of 2009, the European Parliament and the European Court of Justice being excluded from patent law. The European Commission used a trick to avoid redoing the study. Open Letter to the European Institutions, and Heads of State
Brussels, 26 November 2021. Dear Commissioner Von Der Leyen,
Dear Commissioner Breton,
Dear Members of the European Parliament,
Dear Members of the Council,
Dear European Ombudsman,
FFII.org is a pan-European alliance of software companies and independent software developers, defending the rights to a free and competitive software creation since 1999.
Brussels, 29 october 2021 — The Council of the European Union has declared ‘into force’ the Unitary Patent’s PPI agreement on the 27th October 2021, while the UK is still mentioned in its Art18(1) as a requirement for it to enter into force. The Council of the EU is bruteforcing international law and the Vienna Convention on the Law of the Treaties (VCLT), which says that “treaties shall be interpreted in good faith in accordance with the ordinary meaning”. The Article 18(1) on the Entry into force is pretty clear:
“This Protocol shall enter into force 30 days after the date on which the last of the four State Parties – France, Germany, Luxemburg and the United Kingdom – has deposited its instrument of ratification, acceptance approval or accession.” — Protocol on Privileges and Immunities of the Unified Patent Court – Article 18(1) https://www.unified-patent-court.org/sites/default/files/ppi_final_ii_en_clean.pdf
Proponents of the Unitary Patent project want software patents enforcable across Europe via the jurisprudence of such a Court, without the intervention of the European Court of Justice in patent law. They want to avoid a renegotiation of the UPC treaties (UPCA, PPI, PPA) at any cost, because it would create some delay.
Brussels, 17th June 2021 — [updated on 4th October] FFII has received a testimony from a whistleblower that the European Commission has recycled an old Impact Assessment (IA) of the Unified Patent Court (UPC), in order to hide the controversial self-financed aspect of the Court, which is why the Court is too expensive for SMEs. Countries are ratifying this dangerous treaty without any real Impact Assessment of the new Court system which will exclude most SMEs with its super high costs. The Impact Assessment was recycled from the Community Patent project, with lots of changes in the meantime, similar to what happened recently with the recycling of the Impact Assessment of the Mercosur treaty. During the ratification of the UPC in Germany, the German Liberals (FDP) asked a series of questions about the UPC and SMEs, mentioning that the European Commission recognized that there was no Impact Assessment for SMEs:
FDP: How has the government concluded that the European patent reform is beneficial to SMEs, in view of the risks for SMEs which the European Commission has admitted and the lack of a cost-benefit analysis? The German Ministry of Justice Christine Lambrechts (SPD) strangely replied by mixing the 2 first questions, justifying the UPC with an older impact assessment made in 2009, which is strangely silent about the costs of the court system, the second part of the reform.
Berlin-Brussels, 26 nov 2020 — The Bundestag has voted today on the Unitary Patent, the third attempt to validate software patents in Europe. FFII is calling on software companies all over Europe and the free and open source (FLOSS) community to urgently donate to crowdfund a constitutional complaint, as the UPC will promote patent trolls and job destruction, without the possibility for the CJEU to have a say in patent law. Only Constitutional Courts can save us from the UPC and its Patent Trolls. CDU/CSU/SPD ate the propaganda of the “cheaper” patent for SMEs, while the UPC will increase the costs of access to justice for SMEs. The German Ministry of Justice Christine Lambrecht (SPD) refused to procure an “impact analysis” for SMEs, relying on an “outdated” and “full of errors” analysis from 2009, while the UPCA treaty was signed in 2012, and expensive court fees of 20.000EUR (validity) and 10.000EUR (infringement) will worsen the case of SMEs to access justice.
Dear Members of the German Greens in the Bundestag,Dear Members of the Greens in the European Parliament,
There is a vote this afternoon at 3PM on the ratification by Germany of the UPC. The software patent directive of 2005 was rejected at the request ofmultinationals, who preferred to push for a trusted patent court instead of modifying the substantive patent law. The Greens always had a clear position on this issue of softwarepatenting at the EU level, and a clear position during the EuropeanElections.We recommended to our numerous supporters to vote for the Greens during the european elections in each of their countries because the Greens were the only party with a clear position on this issue, as other political parties were split.IF YOU VOTE FOR THE UPC THIS AFTERNOON IN THE BUNDESTAG, WE WILL MAKE SURE YOUR ELECTORS IN GERMANY AND ELSEWHERE WILL BE INFORMED THAT YOU BETRAYED THEM IN NOT KEEPING YOUR ELECTORAL PROMISES, IN THAT THE TRUST THEY GAVE TO YOU BY VOTING FOR YOUR PARTY IS BROKEN.I will personally make sure this betrayal is well documented and in the media.We had a similar issue during the ratification in Belgium.Please read carrefully our open letter we sent few days back:https://ffii.org/is-germany-competing-with-hungary-and-poland-on-the-worst-rule-of-law-award-with-its-rushed-ratification-of-the-unitary-patent/https://ffii.org/wp-content/uploads/2020/11/ffii-upc-bundestag-europe.pdfBest regards,Benjamin HenrionFFII e.V.
“In July 2005, after several failed attempts to legalise software patents in Europe, the patent establishment changed its strategy. Instead of explicitly seeking to sanction the patentability of software, they are now seeking to create a central European patent court, which would establish and enforce patentability rules in their favor, without any possibility of correction by competing courts or democratically elected legislators.” Links
Remember July 6th, 2005: ICT Industry warns MEPs on Unitary Patent
“As for the supposed reduction of costs pursued by the regulation : “the proposal will reduce the cost of registration but it will increase the overall cost of patent protection because litigation will become more complicated and expensive”http://rememberjuly6th.wikidot.com/press-release:ict-industry-warns-meps
Patrick Breyer : ‘UPCA should be abandoned and substantive reform at EU level taken up’
Kluwer: Are you concerned German re-ratification will be pushed through parliament?
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