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German Ministry of Justice Christine Lambrecht (SPD) refused to procure an “impact analysis” for SMEs, relying on an “outdated” and “full of errors” analysis from 2009, while the UPCA treaty was signed in 2012, and expensive court fees of 20.000EUR (validity) and 10.000EUR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. The UPC will increase the cost for a simple court case, that’s why other countries like Poland or Czech Republic who have properly procured “impact analysis” have rejected the UPC for their SMEs.
Patent experts warned about higher costs of the UPC for SMEs:
“Small and medium-sized enterprises (SMEs) in particular see a negative impact through the UPC. The main reason is the increased costs, especially the high legal costs.”— Dr. Natalie Kirchhofer, patent attorney and partner at Cohausz & Florack, in Lexology article “New draft legislation in Germany to ratify the Unified Patent Court”
Benjamin Henrion, President of FFII eV, reacts to the vote:
“The Unitary Patent project was advertised as a “cheaper” solution for patents in Europe, but we are ending up with a system that is more expensive to litigate for a simple case compared to the current situation. So much for the “Better Law Making”, “SMEs” and “Access to Justice”. The UPC will also validate software patents through caselaw and boost patent trolls and job losses, without any appeal possible to the European Court of Justice (CJEU).”
FFII is now calling on its supporting companies and on the open source community to donate to crowdfund a Constitutional Complaint in Karlsruhe. Stopping the UPC in Germany will be enough to kill the UPC for the whole Europe. Politicians willfully ignored the problem that the UPC violates the “Rule of Law” principle, as the EPO still cannot be sued for maladministration, where there are 4 pending complaints in Karlsruhe, which should be issued in early 2021.
Next steps are a vote in the Bundesrat, according to Stjerna’s blogpost
Legal Committee of the Federal Council is currently scheduled for 02/12/2020
Federal Council can therefore be expected to make its final deliberation on the draft legislation in its 998th session on 18/12/2020–Dr Stjerna blog, Status of the UPCA ratification proceedings in Germany (12/12/2016, latest update on 26/11/2020) https://www.stjerna.de/restart/?lang=en
German government believe that they can ratify before the end of the year, as they consider the UK still a member of the EU till 31st December. The agenda of next votes have been designed on purpose to ratify the UPC before the end of the year.
FFII expects dirty agenda and political hacks to declare the treaty “into force”, dismiss “constitutional complaints”, while the presence of UK is still problematic.
President of FFII e.V.
Landline: +32-2-259 65 16
- Donate here to crowdfund a constitutional complaint in Karlsruhe https://ffii.org/donate-now-to-save-europe-from-software-patents-says-ffii/
- Open Letter: 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/is-germany-competing-with-hungary-and-poland-on-the-worst-rule-of-law-award-with-its-rushed-ratification-of-the-unitary-patent/ “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” (TFEU art2) and is a categorical constitutional guarantee (i.e judicial review of administrative acts). It is spectacularly absent from the Unified Patent Court and Unitary Patent institutional arrangement.”
- Problem 2: Litigation will be more expensive, especially for defending SMEs https://ffii.org/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/
- SPD and CSU positions: https://www.stjerna.de/restart/?lang=en (scroll to Update (25 and 26/11/2020) )
- Kluwer Patent Blog: German Bundestag approves legislation to ratify the Unified Patent Court Agreement http://patentblog.kluweriplaw.com/2020/11/26/german-bundestag-approves-legislation-to-ratify-the-unified-patent-court-agreement/
- Open Letter to the German Greens on UPC and software patents: don’t betray your voters and your promises, or you will regret it https://ffii.org/open-letter-to-the-german-greens-on-upc-and-software-patents-dont-betray-your-voters-and-your-promises-or-you-will-regret-it/