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

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[ 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.

The situation is binary:

0. either Germany signs an international agreement with a non-EU member and violates EU law and the AETR jurisprudence;

1. either negotiations are being reopened to address the long list of problems created by the UPC (tripling the costs of defense for SMEs, allowing software patents via the backdoor, impossibility for the CJEU to have a say in patent law, graveyard for the rights of the ‘defendent’), including the departure of the UK and relocation of the London Court to another location, such as Milan in Italy. If Germany ratifies tomorrow, Italians won’t a have word to say about the ‘temporary’ relocation of the court to Paris.

Germany is also ignoring the recent decision of its Constitutional Court, which clarified that the UPC is only open to EU member states, quoting the press release of the Court:

The Agreement is open exclusively to EU Member States.

Germany is obviously stretching the limits of interpretation of the treaty, against the Vienna Convention on the interpretation of the Treaties which says treaties have to be interpreted in ‘good faith’:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The German Ministry of Justice seems to have taken this creative interpretation from a recent Pr Tillmann’s paper (published in GRUR 2020/441, also on Techrights.org article “Paris instead of Milan”), a lawyer who previously dismissed any problems with the fact that the Bundestag was ratifying an international agreement at midnight with only 35 deputies out of 720, instead of the 2/3 majority required the recent ruling of the Constitutional Court (also on Techrights “Team UPC’s Tilmann Defends Rogue Vote at 1 AM in the Morning With Just 5% of Politicians (Those With Vested Interests) Attending“).

Pr Tillmann’s paper also argued that the London Court could slip to Paris instead of Milan:

For this reason, the Central Chamber of Paris has to take over the tasks of the London branch until further notice without any regulation being necessary. The next time the UPC needs to be ratified, a decision can then be made about any further outsourcing of this or another part of the competency to another contracting member state.

Tilmann: Zur Nichtigerklärung des EPGÜ-Ratifizierungsgesetzes (GRUR 2020,. 441), available at http://techrights.org/2020/06/11/paris-instead-of-milan/

This interpretation has inspired the Ministry of Justice:

The Convention expressly provides that, in addition to the seat of the first instance central chamber of the court in Paris and the Munich site also has a department in London – is settled. However, it cannot be understood that there is one Chamber location in a non-contracting member state. If the Central London Chamber unit ceases to exist, the Convention is to be interpreted as:

Responsibilities, at least temporarily, of the (continuing) existing Central chamber in Paris and Munich grow. An express regulation may in due course within the framework of an Article 87 paragraphs 1 and 3 of the Convention’s review of the now the court works.

A political statement on these issues is sought among the remaining contracting states. The mutual implementation of the treaties would ultimately also be an exercise or agreement of the contracting states that is considerable under international law Article 31 paragraph 3 of the Vienna Convention on the Law of Treaties.

Referentenentwurf des Bundesministeriums der Justiz und für Verbraucherschutz

Under this reasoning, the Italians are screwed and won’t get the court in Milan. Italy should intervene, and ask the ratification process to be suspended until “a political statement on these issues is sought”.

Germany is interested to have the UK onboard to get the treaty running ‘whatever it takes’, but not interested to keep the UK with its court in London. Germany cannot have its cake and eat it too.

The German Ministry of Justice has ignored all the legal and economic concerns over the Unitary Patent Court. It has not done its homework so far, according to the rules of the government (GGO), the Ministry of Justice should have published instead:

  1. an analysis of the impact of the Unitary Patent on SMEs, especially on higher costs of defense (3.5x more expensive then normal for a simple case, only 10% of cases are cross-border). Czech Republic procured a study to PWC, where the main findings were very negative; nothing was published up to now;
  2. an analysis of the compliance with the ECHR, which has obvious violations (such as rules of procedure of the court made by a puppy committee, which is against all constitutions of developed nations, and in direct violation of ECHR art6, where courts have setuped by law makers, ie parliaments): nothing was published up to now;
  3. a legal analysis on the compliance with EU law; nothing was published up to now;
  4. a legal analysis on the rules of law, where the EPO still cannot be sued for maladministration or refusal to grant a patent, where 3 cases are still pending in front of the Constitutional Court; nothing was published up to now;
  5. a legal analysis of the impact of Brexit, making a deal with non-EU member state, which is restricted by the AETR jurisprudence of the CJEU, and where the EPLA, the European Patent Litigation Agreement, was stopped for the same reason by the legal department of the European Parliament in 2007; nothing was published up to now;
  6. the German Ministry of Justice should have produced an impact assessment for each sector of the economy, and should have come to the conclusion, for the software sector, that the centralization of the court system can lead to the validation of software patents EU-wide via the “as such” and “technical effects” loopholes, as recognized by the European Commission in its 2012 UPC memo.
  7. COVID19: the UPC should be reopened to deal with the next pandemy, harmonizing the ‘compulsory licensing’ principle, which give access to medecines and vaccines against those diseases, so that the decision is harmonized and the same accross Europe. We heard BigPharma prevented the intervention of the CJEU in patent law with Cameron’s intervention to remove art6-8 of the project (referral to the CJEU). Europe might suffer from decisions of specialized patent courts not to grant access to patented medecines. This was one of the ‘12 reasons for concerns‘ raised by the serious Max Planck Institute.

If Germany ignores all those problems and push the ‘ignore’ button on all this issues, there will be a second constitutional complaint filed immediately.

Companies concerned about patent trolls and software patents via the backdoor should urgently call their MP for a debate in their national parliaments. And ask for this legal problem to be discussed with other countries in the Council of EU Ministers and the upcoming German Presidency, who should provide a legal opinion via its legal service. The European Parliament did exactly that in 2007 with the EPLA, the predecessor of the UPC.

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The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.

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