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“The possibility to sue an administrative body, such as the EPO, for maladministration before the courts is one of the fundamental pillars of our western democracies, also called the “Rule of Law” (TFEUart2) and [..] is spectacularly absent from the Unified Patent Court.” Open Letter to the Bundestag and EU institutions: is Germany competing with Hungary and Poland on the “Worst Rule of Law Award” with its rushed ratification of the Unitary Patent? Berlin-Brussels, 23 November 2020.Dear Members of the Bundestag,Dear Members of the European Parliament,Dear Members of the Council,Dear German Presidency of the EU,Dear Chancellor Merkel,Dear Commissioner Von Der Leyen,Dear Commissioner Reynders,Dear Commissioner Breton,FFII e.V. is a pan-European alliance of software companies and independent software developers, defending the rights to a free and competitive software creation since 1999. Over the years, more then 3,000 software companies accross Europe have supported our calls against software patenting, among which 1,100 German ones. With the Unitary Patent project, we are at the third attempt to validate software patents in Europe. The previous 2 first attempts to change the law (EPC2000 and the 2005 software patent directive) failed.This Wednesday 25th november 2020, the Legal Affairs committee of the Bundestag will vote on the ratification by Germany of the Unitary Patent and its Court [ref1].
Today, October 8th 2020, the Unitary Patent is entering the German Bundestag. FFII is calling on urgent donations to crowdfund a Constitutional Complaint against the third attempt to impose software patents in Europe, via the Unified Patent Court (UPC). FFII is calling on its German supporters and companies to contact their Member of Parliament. Software Patents through the backdoor
The proposed Unified Patent Court would create case law in favour of patentability of software, using the “technical effect” or “as such” loopholes, as confirmed by the European Commission in its 2012 Memo on the UPC. Software patents have negative effects on job creation, as small software companies don’t have the resources to defend themselves in court.
Germany set to vote on the Unitary Patent Court (UPC), a proposal that would kill jobs and innovation in software. Open Letter to the Bundesrat: “Germany will violate 3 international agreements with the Unitary Patent”
Dear Members of the Bundesrat,
Tomorrow Friday 18 September 2020, the Bundesrat will be asked to ratify the Unitary Patent and its Court (UPCA) (point 55 on the agenda). We would like to raise 4 objections regarding this ratification, as it carries the risk to violate 3 international agreements (VCLT, ECHR and TFEU) and the German Constitution:
1. Software patents will be made enforceable without a debate
FFII eV represents the voice of 3000 software companies and independent software developers across Europe. Our software companies oppose the UPCA, as it will validate software patents through the caselaw of such a court, using the “technical effect” or “as such” loopholes, as confirmed by the European Commission in its 2012 Memo about the UPC. Software patents have negative effects on job creation, as small software companies don’t have the resources to defend themselves in court. Software patents are also opposed by a majority of companies in our sector, as more and more litigating companies (also called “patent trolls”) are trying to extract money.
FFII opposes the third attempt to impose software patents in Europe via the Unitary Patent Court (UPC). After UK’s departure, FFII oppose any “quick fix” of the project, like simply replacing UK by Italy. The UPC cannot be “fixed”, as its design is a international parallel court system outside the structures of the European Union, the European Court of Justice (CJEU) and the European Parliament. You can find below a copy of FFII’s answer to the European Commission’s public consultation on the “IP action plan”. Introduction
Dear Members of the European Commission,
FFII welcome the opportunity to comment on this public consultation about the “IP action plan”.
Brussels and Berlin, 15th June 2020 – The German government is pushing for a second vote on the Unitary Patent at the Bundestag. By signing an international treaty with the UK as signatory, Germany is ignoring Brexit, and will violate EU law. The government has resorted to a very creative interpretation of the agreement in order to ignore the Brexit problem, showing its dedication to see the UPC agreement entering into force ‘whatever it takes’, at the risks of alienating Italy, with an automatic relocation of the UPC court from London to Paris instead of Milan. With the German Presidency starting in a few weeks, Germany risks to undermine the functioning the European Union. Here is the very creative explanation of the Ministry of Justice to ignore the Brexit problem (translated from German), published in its draft law last thursday:
The fact that Great Britain broke the Convention as a result of Brexit does not prevent its implementation: the Regulations for entry into force of the Convention and its rules should ensure that all three are involved in the contract States, the Federal Republic of Germany, France and Great Britain, already participate in the judicial system at the start of the Unified Patent Court.[…]Regardless of the fact that UK approval currently exists a departure from Great Britain has no influence on the applicability of the entry into force regulations in any case because these are to be interpreted in such a way that if one of these three states can not be foreseen by anyone, the entire entry into force for the does not hinder remaining participants.
This is the FFII’s answer to the 3 weeks ‘private’ consultation organised by the German Ministry of Justice, which ran till the 3rd of July 2020. Since the procedures around this ‘private’ consultation are not very clear, we call for an ‘open’ consultation with a proper procedure. The UPC is an unheard new architecture in the history of the contruction of the European Union, which has extreme complexity due to the outsourcing of civil disputes to an international tribunal. Public consultations on the UPC were denied in the past by the new Chairman of the German Federal Constitutional Court, Mr Harbart, who is a former lawyer and Member of the Parliament for the CDU.UPDATE: Dr Ingve Björn Stjerna has published the letter from the german Ministry of Justice, deadline for comments is the Friday 3rd July (scroll the the bottom of the page “Update (16 and 17/06/2020)”).UPDATE2: Guidelines for submissions: “Please note that the comments you submit will be published on our website. This also includes names and others personal data contained in the document.
COVID tracing apps are now under the threat of a software patent in the United States, granted to Blyncsy, a company from Utah. This is the posterchild of an American patent office willfully ignoring the Alice jurisprudence of the Supreme Court, which bans patents on software. Blyncsy was granted a patent on February 2019 titled “Tracking proximity releationships and uses thereof” (US10198779B2), which claims “receiving data about a first person and a second person, the first person having a contagion.” US10198779B2: Tracking proximity releationships and uses thereof
Blyncsy has opened up a new webpage for collecting royalties, signaling their intention to actively racket other players around this broad and trivial software patent. Their CEO Mark Pittman said:
“We have launched the website to streamline the process to make licensing easier.
Brussels, 1st April 2020 — The Unified Patent Court (UPC) has issued a pan-European injunction to halt the sales of ventilators across Europe. The Court ruled that ventilators used by hospitals in the current pandemic of COVID-19 were violating an EPO patent on graphical user interfaces using tabs, granted to Bulldog Diagnostics LLC. Despite the lockdown, crowds started assembling around EPO offices, and the protests quickly escalated into violent riots. Protesters said that patent law cannot live in its own bubble, that lives were more important than profit. An OES CYGNUS Anaesthesia Ventilator using tabs (ref: https://www.oes-medical.co.uk/cygnus/ )
EPO patent EP 689133 on Tabbed panels
James Live, of Ecologic International: “Halting sales of life-saving devices in a middle of a pandemic is a criminal act.
Brussels, 23 March 2020 — The third attempt to validate software patents in Europe via a central patent court (UPC) has been stopped by the German Constitutional Court. The Unified Patent Court (UPC) would have given the keys of the kingdoms to the patent industry, and the last word over software patentability. FFII predict that the patent industry will continue to push for an UPC v2.0. The Unitary Patent was the third attempt to validate software patents in Europe. Software patents are a danger for small companies that cannot afford defense, especially against patent trolls.
Le Brevet Unitaire est la troisième tentative de valider les brevets logiciels en Europe. Les Brevets Logiciels sont des dangers pour les petites entreprises du secteur, qui ne peuvent se défendre. La Cour UPC est une cour internationale captive située au dehors de l’Union Européenne et de la Cour de Justice de l’Union Européenne, et qui aura le dernier mot sur la question des brevets logiciels. La Cour UPC favorisera les “trolls des brevets” qui volent nos emplois. 1.
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