[A2k] Germany can no longer ratify the Unitary Patent due to Brexit and the established AETR case-law, says FFII

Benjamin Henrion bhenrion at ffii.org
Wed Feb 19 04:43:39 PST 2020


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     Germany can no longer ratify the Unitary Patent due to Brexit and the
                     established AETR case-law, says FFII
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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). UK is now a “third state” within the meaning of
AETR case-law, under the current transition period of the Withdrawal Agreement
and, as such, the authoritative legal precedent of AETR applies now.

If Germany is misled by the patent industry and ratifies the UPC, this would be
a serious breach of procedure under EU law by the German government, and a new
constitutional complaint will be launched.

The “AETR” case-law (22/70) of the Court of Justice of the EU, makes clear
that:

  “Each time the Community, with a view to implementing a common policy
  envisaged by the Treaty, adopts provisions laying down common rules, whatever
  form they may take, the Member States no longer have the right, acting
  individually or even collectively, to undertake obligations with third
  countries which affect those rules or alter their scope.“

Accordingly, the EU has the competence to sign an agreement with the UK
relating to the subject matter covered by the UPC. The fact that the UK has
withdrawn from the EU, clearly brings the matter within the competence and
supranational jurisdiction of the EU.

This practically means that the ratification procedure for the Agreement on the
Unified Patent Court (UPCA) must now come to an end, as that Agreement no
longer applies due to the current significant changes (i.e. Brexit) in the
membership requirements of its own ratification rules. In addition, according
to the Common Rules of Procedure of the German Federal Ministries (Gemeinsame
Geschäftsordnung der Bundesministerien), section 43 (1) number 8, calls for the
presentation of the connections to and the compatibility of German legislative
initiatives with the EU law.

It follows that the German Government must examine first whether or not  the
UPCA can still be compatible with EU law, and in particular, now that the UK
has withdrawn from the EU. In view of the established case-law in “AETR” and
the exit of the UK from the EU, the UPCA is clearly no longer compatible with
EU law.

In this respect, as the question of compatibility of UPCA with EU law has
already been addressed to the highest court in Germany, the German
Constitutional Court is now required to refer the matter to the CJEU for a
preliminary ruling under the provisions of Article 267 TFEU, before the German
judges reach a decision.

The Unitary Patent is a highly controversial and extreme issue, as it allows
new international patent courts to have the last word on the development and
application of patent law and industrial property monopolies including, more
seriously, the validation and expansion of software patents, that is the key
sector on which whole industries and markets depend. It also leaves the Court
of Justice of the EU in the weakest position to have only a say in few limited
tech matters. Such an unprecedented takeover of the EU’s institutional powers
by external, international organizations, of which the Unitary Patent system
consists, is dangerous and can undermine permanently democratic governance and
with it, economic development and sustainability in entire states in Europe.

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Links
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1. AETR caselaw on EUR-Lex: Judgment of the Court of 31 March 1971 – European
   Agreement on Road Transport – Case 22-70:
   https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61970CJ0022

2. Council document on ‘Institutional aspects of the EC’s accession to the
   European Patent Convention’:
   https://data.consilium.europa.eu/doc/document/ST-13742-2001-INIT/en/pdf

3. Council document on ‘Request for an opinion by the European Court of Justice
   on the compatibility under the EC Treaty of the envisaged Agreement creating
   a Unified Patent Litigation System (UPLS)’: “IV. COMMUNITY COMPETENCE […]
   (32) As regards European patents, the aim and content of the measure
   consisting in the establishment and organisation of a specialised
   jurisdiction of an international nature for cases concerning patents, are
   essentially a matter that falls within Member States’ competence. However,
   some of the provisions of the envisaged Agreement relate to matters for
   which the Community has already exercised its internal competence by laying
   down common rules. In the light of the case law of the Court of Justice,
   Member States no longer have the right, acting individually or collectively,
   to enter into obligations with third countries which may affect these rules
   or alter their scope (ref19 AETR)”:
   https://data.consilium.europa.eu/doc/document/ST-10571-2009-INIT/en/pdf

4. Unitary patent protection systems in Europe, Masahiko Matsunaka: ”Since the
   EPLA establishes the European Patent Court and confers jurisdiction to the
   court, it obviously affects the Brussels Regulation. Moreover, the states
   participating in the EPLA negotiation are not only EU member states, but also
   include non-EU states (e.g., Switzerland). Therefore, the EU member states
   would have no powers to institutionalize the EPLA based on the AETR doctrine”
   http://www.iip.or.jp/e/summary/pdf/detail2004/e16_20.pdf

5. Oshaliang: Why Does the U.S. Supreme Court Keep Reversing the Federal
   Circuit? “the Federal Circuit was perceived by some as too pro-patent, with
   concerns that this favored weak patents and patent trolls.  Whether or not this
   was a concern of the Court, recent decisions of the high court have mostly cut
   back on patent protections that had been upheld by the Federal Circuit.”
   https://oshaliang.com/newsletter/why-does-the-u-s-supreme-court-keep-reversing-the-federal-circuit/

6. Permanent link to this press release:
   http://blog.ffii.org/germany-can-no-longer-ratify-the-unitary-patent-due-to-brexit-and-the-established-aetr-case-law-says-ffii/

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Contact
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Benjamin Henrion
FFII Brussels
Tel: +32-484-56 61 09 (mobile)
Email: zoobab at gmail.com
Twitter: @zoobab
(French/English)
 
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About FFII
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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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