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.

We are asking you to send the UPCA for renegotiation, so that the European Court of Justice (CJEU) will have a say on software patents, as Unitary Patent legal basis is Art118 TFEU “creation of European intellectual property rights”. In 2012, the UK was allergic to the CJEU and asked for the removal of Art6-8, which would have given competence to the CJEU to decide on patent law. The patent industry also wanted their own court, and a monopoly on the interpretation of patent law.

Experts are divided on the question whether the CJEU will be able to rule on patentable subject matter, as the UPCA has been designed to avoid the intervention of the CJEU in patent law.

2. The UK is still listed as a “negotiating state” of the Agreement according to the Vienna Convention on the Law of Treaties (VCLT)

The United Kingdom is still listed as a country part of the Agreement, and the Ministry of Justice has resorted to very creative legal tricks in order to get the UPCA “into force”.

In June, the Ministry of Justice was saying the ratification by the UK was a requirement to get the Treaty into force:

“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.

On the 21st of July, the UK has de-ratified the UPCA on the 21st of July, by sending a Note Verbale to the Council of the European Union.

The UK is still a “Negotiating State” in the sense of Article 2(e) of the Vienna Convention on the Law of Treaties (VCLT). The UK has not given its agreement for the international treaties whose texts it took part in drawing up and adopting (the UPCA and the two associated protocols) to enter into force. Thus, in addition to entry into force now being contrary to a literal reading of the relevant provisions of the Agreement and Protocols, there would appear to be no basis for entry into force under Article 24 VCLT.

As London is still listed as the seat of the Court for Pharmaceuticals, the Bundesrat MUST send back the UPCA to the European Commission for renegotiation. Germany cannot re-interpret the UPCA in order to unilaterally (temporary or indefinitely) redirect the workload of the London court to Paris and Munich.

3. Lack of compliance with the European Convention on Human Rights (ECHR) Art6 “a Tribunal established by law”

3a. Rules of Procedure not made by legislators

Despite the Brexit problem, the German Ministry of Justice should have presented to you, as required by its Joint Rules of Procedure of the Federal Ministries (GGO), together with the bill, an analysis of the UPCA’s compliance with the ECHR (European Convention on Human Rights).

The UPCA is not compliant with the ECHR, as its rules of procedure are mabe by an obscure Administrative Committee, and this is in violation with Art6 ECHR, “a tribunal established by law“, where the ECHR’s jurisprudence requires that Parliament(s) [you] should have been involved in the drafting and ratification of those rules of procedure.

Any democrat will understand that this jurisprudence is in place in order to avoid the creation of rogue tribunals, installed by the executive power. This lack of compliance has been raised in the first constitutional complaint and mentioned in the 20th March 2020 decision of the Constitutional Court, but the Court did not rule on this point.

In Coëme Vs Belgium (22 juin 2000), the ECHR court said that “the judicial organisation in a democratic society does not depend on the discretion of the Executive, but that it is regulated by law emanating from Parliament“:

According to the case-law, the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society [does] not depend on the discretion of the Executive, but that it [is] regulated by law emanating from Parliament” (see Zand v. Austria, application no. 7360/76, Commission’s report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70 and 80). Nor, in countries where the law is codified, can organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation.

ECHR, Coëme e.a./Belgique, 22 juin 2000, Req. n ° 32492/96, 32547/96, 32548/96, 33209/96 et 33210/96, §98

You can also find similar jurisprudence in other decisions:

ECHR, Pandjikidzé e.a./Géorgie, 27 oct 2009, Req. n° 30323/02 , §§ 104 et 105

ECHR, Savino e.a./Italie, 28 apr 2009, Req. n° 17214/05, 20329/05, 42113/04, §94

ECHR, Previti/Italie, 8 déc 2009, Req. n° 45291/06, §213

ECHR, Laventis/Lettonie, 28 nov 2002, Req. n° 58442/00, §114

ECHR, Zeynalov/Azerbaïdjan, 30 may 2013, Req. n° 31848/07, §30

ECHR, Momčilović/Serbie, 2 ape 2013, Req. n° 23103/07, §29

ECHR, Oleksandr Volkov/Ukraine, 9 jan 2013, Req. n° 21722/11, §151.

ECHR jurisprudence on Art6 “A tribunal established by law”
3b. Litigation will be more expensive for a single case

After the UPCA has been negotiated in 2012, this obscure Administrative Committee took the freedom to decide on the court fees. Those court fees are important for the “access to justice” and a very sensitive topic for SMEs. Those court fees will result in a 3x increase in the costs of litigation, for a simple case, and compared to the actual situation in Germany. This Administrative Committee took the freedom to decide on expensive court fees that will bare access to the Court, advised by an “expert committee” where no SME was represented. Multinationals like Nokia or BASF were allowed to give their opinion. We believe this is also in violation of the ECHR art6 “a tribunal established by law”, as this Administrative Committee does not have the power to legislate. It should have been your role as a legislator to decide what those amounts should have been.

4. UPCA is violating the “rule of law” (TFEU Art2), the EPO cannot be brought to court for maladministration

The UPCA is also violating the “rule of law” principle, enshrined in the German Constitution, and in Article 2 of the Treaty of the Functioning of the European Union (TFEU).

The European Patent Office (EPO) cannot be brought to Court for maladministration, and there are currently 4 pending cases in front of the German Constitutional Court for violation of such principle. The Court is expected to publish a decision on those complaints before the end of this year, which might have some profound impact on the architecture of the patent system in Europe. The Ministry of Justice does not seem to want to wait for this important decision.

If those points are not seriously addressed and the UPCA sent back for renegotiation, we will consider asking the German Constitutional Court to look again at those issues in a second Constitutional Complaint.

Best regards,

HENRION Benjamin

President of FFII eV

Mobile: +32-484-566109

Landline: +32-2-259 65 16

Email: bhenrion at ffii.org

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