EU declares Unitary Patent’s PPI agreement into force while UK is still a condition, ignoring Brexit and the Rule of Law

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)

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.

European Commission cheated Unitary Patent’s Impact Assessment to hide its high costs for SMEs

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.

FFII call on donations against Unitary Software Patent Trolls after disastrous Bundestag vote

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.

European Greens against software patents

Open Letter to the German Greens on UPC and software patents: don’t betray your voters and your promises

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: 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”

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?

Is Germany competing with Hungary and Poland on the “Worst Rule of Law Award” with its rushed ratification of the Unitary Patent?

PDF version here: ffii-upc-bundestag-europeDownload

“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].

Donate now! to save Europe from Software Patents, says FFII

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). 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. More and more litigating companies (also called “patent trolls”) are trying to extract money from software companies. 

The UPC is shielded from any intervention of the European Court of Justice (CJEU) in patent law, as the European Patent Convention (EPC) is international law and not EU law. How to Donate

Go to and make a wire transfer with a communication “noswpatv3”.

Germany will violate 3 international agreements with the Unitary Patent, says FFII

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 UPC

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”.

Unitary Patent: Germany is ignoring Brexit, European law, its Constitutional Court and Italians

[ Press release – Germany / Europe / Italy / Economy / Patent ]

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.

Brexit: FFII rejects the proposal by the German Ministry of Justice to present the Agreement on the Unified Patent Court (UPCA) to the German Parliament for ratification

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.