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 <email@example.com>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.
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German Ministry of Justice Christine Lambrecht (SPD) refused to procure an “impact analysis” for SMEs, relying on an “outdated” and “full of errors” analysis from 2009, while the UPCA treaty was signed in 2012, and expensive court fees of 20.000EUR (validity) and 10.000EUR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?
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].
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 https://galette.ffii.fr/infos_donation_en.php and make a wire transfer with a communication “noswpatv3”.
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.
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