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.
PRESS RELEASE — [ Europe / Brexit / Patent / Democracy / Economy / Software ]
Berlin, 19 feb 2020 — Germany cannot ratify the current Unitary Patent due to Brexit and the established AETR case-law. The ratification of the UPC (Unified Patent Court) by Germany would constitute a violation of the AETR case-law, which was used during the EPLA negotiations in 2006 to consider a deal with non-EU countries, such as Switzerland. FFII says that if Germany proceeds with the ratification, it will open up the possibility for a second constitutional complaint. The Unitary Patent signals the third attempt to validate and expand software patents in Europe. Following Brexit, the UPC has become a different kind of agreement, whose validity passes now under the supranational jurisdiction and competence of the EU (Articles 216/218 TFEU).
PRESSEMITTEILUNG — [ Europa / Brexit / Patent / Demokratie / Wirtschaft / Software ]
Berlin, 19. Februar 2020 — Mit Inkrafttreten des Brexit ist es Deutschland nicht mehr möglich, das Abkommen über das Einheitspatent (Unitary Patent) zu ratifizieren, teilt das FFII mit. Im Zusammenhang mit der Ratifizierung des AETR (22/70) hat der Europäsche Gerichtshof Rechtsgrundsätze aufgestellt, die während der Verhandlungen 2006 dazu führten, dass nicht-EU-Staaten, wie die Schweiz, ausgeschlossen wurden. Das FFII ist der Ansicht, dass bei einer Ratifizierung in Deutschland eine erneute Verfassungsbeschwerde vielversprechend ist. Das Einheitspatent ist ein dritter Anlauf, um Software-Patente in Europa durchzusetzen.
COMMUNIQUE DE PRESSE – [ Europe / Brexit / Brevet / Démocratie / Economie / Logiciel ]
Berlin, 19 février 2020 – L’Allemagne n’a pas le droit de ratifier l’actuel brevet unitaire suite au Brexit et à la jurisprudence de l’AETR, selon FFII. La ratification de l’UPC par l’Allemagne constituerait désormais une violation de la jurisprudence AETR, qui a été utilisée lors des négociations sur l’EPLA en 2006 pour considérer un accord avec des pays tiers, comme la Suisse. La FFII indique que si l’Allemagne procède à la ratification, cela ouvrirait la possibilité d’un deuxième recours constitutionnel. Le brevet unitaire est la troisième tentative de validation des brevets logiciels en Europe. À la suite du Brexit, l’UPC devient un accord de différente catégorie, qui relève de la compétence externe de l’Union Européenne (articles 216/218 TFUE).
(Version plus complète en français ici) (More complete version in french here)
FFII calls to demonstrate against Unitary Software Patents, the third attempt to impose software patents in Europe. Software patents are a threat to small- and medium-sized software companies that cannot defend themselves. The UPC (Unified Patent Court) is an international court made outside of the European Union, which would have the last word over the question of software patenting. The Court would favour “patent trolls” which steal our jobs and extort money. Location: Parlement Régional Bruxellois, Rue du Lombard 69, 1000 BrusselsTime: thursday 12 december from 12H00 to 14H00Recommandation: take a ring of keys with you to make noise, preferably the “keys of the kingdom”Tshirts: we will bring new yellow tshirts “NO Unitary Software Patents” Organisation: Benjamin Henrion, FFII eV, @zoobab Contact: zoobab at gmail.com, +32 484 566109
(Minimalist english version here)
FFII appelle à manifester contre le Brevet Logiciel Unitaire, 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 qui aura le dernier mot sur la question des brevets logiciels. La Cour UPC favorisera les “trolls des brevets” qui volent nos emplois. En pratique
Lieu: Parlement Régional Bruxellois, Rue du Lombard 69, 1000 Bruxelles
Heure: jeudi 12 décembre de 12H00 à 14H00
Consignes: pensez à prendre un trousseau de clefs qui fait du bruit, les clefs du royaume
Organisateur: Benjamin Henrion, FFII eV, @zoobab
Contact: zoobab at gmail.com, +32 484 566109
Tshirts: nous amenerons des tshirts jaunes “NO Unitary Software Patents”
Madrid, 24 June 2019 – The European Patent Office (EPO) has censored contributions to its public consultation ‘EPO2023’ from spanish companies and citizens. The EPO wanted input from the public on how they could “improve” themselves, but failed to be inclusive. Seven contributions were refused on the basis that the EPO only accept contributions from the public only in its official three languages (English, German, French). Apparently, other contributions in Dutch were also censored. The first form was already biased as the EPO considered all companies to be “patent applicants”, so a normal company interested in to participate had to tick the option “other” instead of “company”.
Today is World Intellectual Parasites Day, the day where patent trolls rejoice over sucking more blood out of software companies. Patent parasites rejoice over the creation of the european Unitary Patent Court (UPC), which will create an undemocratic monster fully captured by the parasite industry. Patent parasites are also pushing for a rewrite of the laws in the United States, in order to restore software patents, and continue to suck more blood out the software industry. Video: Unified Patent Court effets on SMEs in Europe
Planisware CEO Pierre Demonsant explains attacks from patent trolls (seek to 02:05). Links
World Intellectual Property Day: https://en.wikipedia.org/wiki/World_Intellectual_Property_Day Tick parasite, credit: Wikipedia https://commons.wikimedia.org/wiki/File:Tick_male_(aka).jpg FFII: Software Patents through a central patent court:http://epla.ffii.org/quotes Youtube: Unified Patent Court effects on SMEs in Europehttps://www.youtube.com/watch?v=mR2l3UC67Rc&t=127 EFF: The Tillis-Coons patent bill will be a disaster for innovation https://www.eff.org/deeplinks/2019/04/tillis-coons-patent-bill-will-be-disaster-innovation
Dear Prime Minister of Estonia,
Dear Members of Parliament of Estonia,
I am calling on Estonian politicians to “take back control” over its nationalposition over the adoption of controversal Copyright Directive (“internetupload filters”) that is scheduled to be “formally” adopted on Mondayby the Romanian Presidency of the Council of the European Union. Estonia has made the following statement  yesterday regarding the adoption of the directive:
“Estonia has always supported the objective of the Directive, namely better access to content online, the functioning of key exceptions in the digital and cross-border environment and the better and balanced functioning of thecopyright marketplace.However, Estonia considers that the final text of the Directive does notstrike a sufficient balance between different interests in all aspects.Furthermore, Estonia has recently had parliamentary elections and our new government and parliament have not been able to give their position on the final compromise text.” I have personally contacted the permanent representation of Estonia (COREPER) in Brussels, which has confirmed that, despite the newly formed government and parliament, it is not the intention of the Estonian delegation in Council to ask for a removal of the dossier from the A-items list on Monday. I am therefore calling on your Government and your newly elected Parliament  to ask for a formal delay, and to assess properly the negative economic consequences of this ill-conceived directive, notably for the burgeoning internet economy. Best regards,
Brussels, 29 March 2019 – FFII is calling on angry protesters against internet upload filters to reverse the position of their country by calling for a vote in their national parliament. Council of the Ministers is an undemocratic institution where decisions on this particular subject are made by officials of the Member States’s ministries of culture. FFII call on national parliaments to ‘take back control’. The adoption of internet upload filters is a strategic mistake that will fuel the eurosceptics game at the coming elections. Boris Johnson’s reaction to european parliament vote yesterday left no doubt about it.
The case that article 13 EU copyright reform proposal will not lead to internet upload filters, has crumbled, now that the German government acknowledges that article 13 would lead to such filters. Proponents of article 13 have claimed that alternatives to upload filters exist which will ensure that copyright protected works are not available on internet platforms. However, in discussions proponents have only mentioned manual filtering as an alternative. This didn’t convince, due to the massive amounts of uploads to filter. In an article major German newspaper Frankfurter Allgemeine Zeitung (FAZ) reports, under the title Bundesregierung rechnet mit ‘Uploadfiltern’ that the German government admits upload filters are likely to be needed. The newspaper mentions that Christian Lange, Parliamentary State Secretary to the German Federal Minister of Justice and Consumer Protection, wrote in answer to a parliamentary question:
“In the [German] federal government’s view it appears likely that algorithmic measures will have to be taken in connection with large volumes of data for practical reasons alone.” (Translation Florian Mueller, see his blog.)
The German government acknowledges what everyone sees as unavoidable in case of large volumes of uploads.
One member of the European Parliament Green group, Helga Trüpel, responded to the blog “Nine Green MEPs voted in favour of upload filters”. She argues that her vote in favour of article 13 copyright reform proposal is not a vote for upload filters. I am grateful for her reaction, which clarifies some issues. I will highlight some of her arguments. The discussion below reveals that Trüpel misrepresents article 13 as notice and take down, often disregards that rights holders do not have to grant a licence, and sees filtering by humans as an alternative to automatic filtering.
The European Parliament has voted in favour of article 13 of the copyright reform proposal. The text of article 13, as adopted by the Parliament, makes internet platforms liable for users’ uploads, but does not mention upload filters. However, as explained by many, including academics, if platforms are liable, they will have to filter to avoid liability. General mandatory upload filters are not allowed in the EU; they interfere too much with our freedom of expression. With its vote, the Parliament voted in favour of upload filters without mentioning them.
About a year ago I requested documents regarding the negotiations on the EU – South Korea trade agreement, provisionally applied since July 2011 and formally ratified in December 2015. I was especially interested in documents regarding the negotiations on intellectual property rights, specifically the documents regarding criminal enforcement. On 24 November 2017 the European Commission provided a link to the partially declassified “Recommendation from the Commission to the Council”. The commission did not declassify the interesting part, the directives for the negotiations. I recently received a list of 15 documents (Annex 1); eight documents are withheld; I received seven partially disclosed documents (zip).
European politicians want more algorithmic transparency. However, they also want to sign the EU-Japan trade agreement, which restricts audits of software and algorithms. 1
For regulatory supervision we need access to source code. The Volkswagen emissions scandal has shown that devices can be programmed to mislead researchers. 2 In addition, audits can reveal whether decision making software contains biases. And Facebook’s role in elections and referendums shows that the use of personal data is not only a civil rights issue, but may compromise the integrity of our institutions.
The Netherlands has published a new model bilateral investment treaty (BIT). It gives multinationals far reaching rights to challenge government decisions and it places its enforcement mechanism (investor-to-state dispute settlement or ISDS) under U.S. and Dutch influence. Enforcement mechanism
The most remarkable change is that all members of ISDS tribunals would be appointed by an appointing authority, the secretary-general of ICSID or the secretary-general of the Permanent Court of Arbitration (article 20). Both are not judges. The International Centre for Settlement of Investment Disputes (ICSID) is part of the World Bank.
The secretly negotiated EU-Japan trade agreement’s intellectual property (IP) chapter limits possibilities for copyright and patent reform. With the agreement, the EU exports part of its IP system. Local rules become binding international rules. Societies need policy space for reform. 1 The exclusive nature of copyrights, patents and other so called intellectual property rights impedes access to medicine and cultural goods, and harms independent and follow up innovation; copyright isn’t fit for the digital age.
The European Commission has published the final text of the EU-Singapore trade agreement. 1 Chapter eight contains implicit and explicit cross-border data flow commitments, with insufficient safeguards. This makes the agreement incompatible with the EU fundamental right to data protection. Noteworthy, a few months ago the EU commission adopted a new, stronger, data protection safeguard for use in trade agreements. The EU-Singapore trade agreement text does not contain this stronger safeguard.
On 31 January, the European Commission agreed on new plans for cross-border data flows and personal data protection in trade negotiations. Cross-border data flows are a difficult issue. Companies want them. The EU wants to open foreign markets for its strong services industry. But data protection is a fundamental right in the EU; it has to be protected also in cross-border data flows.
The EU and Japan have concluded the legal scrub of the EU-Japan Economic Partnership Agreement (EPA). The council may already decide on ratification on 22 May 2018. No EU member state ratification is needed. Regarding cross-border data flows and data protection, a European Commission’s press release states that recent reforms of their respective privacy legislation offers new opportunities to facilitate data exchanges, including through a simultaneous finding of an adequate level of protection by both sides. But this is not the full story.
The EU Court of Justice declared that proactive filtering by internet access providers and internet hosting providers is illegal. 1 Yet, the EU copyright proposal includes such upload filtering. Over 80 organisations warn:
“The signatories warn the Member states that the discussion around the Copyright Directive are on the verge of causing irreparable damage to our fundamental rights and freedoms, our economy and competitiveness, our education and research, our innovation and competition, our creativity and our culture.”
To show the substance behind that sentence, the letter refers in an annex to 29 letters and analyses sent previously by various European stakeholders and experts for more details. A call to action
The European Parliament’s legal affairs committee will vote on the proposal on 25 January. Unfortunately, in this lead committee a significant majority is in favor of upload filters.
The European Commission has asked the EU council a mandate to open negotiations on a multilateral investment court. However, the accompanying impact assessment obscures environmental and social impacts. The council should refuse to provide the mandate. The European Commission published an impact assessment of a multilateral reform of investment dispute resolution. The current supranational system is known as investor-to-state dispute settlement or ISDS.
EU Court of Justice’s Advocate General (AG) Melchior Wathelet finds that investor-to-state dispute settlement (ISDS) agreements between EU countries are compatible with the EU treaties. (Opinion in the Achmea v. Slovak republic, the ruling of the Court will follow later.) ISDS gives private parties access to the supranational level to challenge government decisions. The AG sees the ISDS tribunal in question as a court or tribunal common to two EU Member States. Unfortunately, as I will explain below, in his Opinion the AG disregards known issues and options. I will argue that if the AG wouldn’t have disregarded these issues and options, he couldn’t have reached his conclusion.
London, 9th March 2017 – Companies across UK have expressed their opposition to an attempt to ratify the Unitary Patent treaty which is neither desirable for British software companies nor compatible with Brexit. They call for an urgent debate in the House of Lords and in the Scottish Parliament. After years of intense lobbying by large corporations, as well as their patent lawyers, progress was made towards a Unitary Patent Court (UPC) that would not only facilitate expansion of patent scope to software but also usher in so-called ‘patent trolls’. The Unitary Patent Court will have pan-european authority to impose injunctions, royalties for supposed damages from British companies. This represents an existential threat to many British companies, which foreign companies are hoping to thwart or cripple using patents.
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