Today, October 8th 2020, the Unitary Patent is entering the German Bundestag. 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). FFII is calling on its German supporters and companies to contact their Member of Parliament. 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.
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.
Contact your Member of Parliament
FFII is calling on its German supporters and companies to contact their deputies in the Bundestag, asking for rejection of the Agreement, and a renegotiation to put back the CJEU as having the last word over patent law, and software patents. The Bundestag MUST also send back the treaty for renegotiation, as London is still present in the agreement.
The UPCA also suffers from non compliance with the ECHR art6 “a tribunal established by law” as its rules of procedure are made by an administrative committee. It is also not in compliance with the Rule of Law principle, where the administration (the EPO) cannot be sued for maladministration (refusal to grant for example). The UPC will also make a simple court case more expensive.
FFII is calling on a public debate within the responsible committees (Legal Affairs and Culture). The vote in the Bundestag is foreseen to be happening with the vote of the Budget in late October or early November, because of the logistics required for the 2/3 majority.
If the Bundestag ratifies the UPC and fails to send it back for renegotiation, we will have to file a Constitutional Complaint within 30 days, meaning the complaint has to be ready in advance. Although we have a skeleton ready, we are still looking for a lawyer with knowledge in EU law or Constitutional law.
How to Donate
- Go to https://galette.ffii.fr/infos_donation_en.php with a communication “noswpatv3”. We are using our sister organisation FFII France as we have some technical problem with our accounting.
- Companies can obtain an invoice for their donations.
- If for some reason the complaint is not tabled, we will issue a refund.
- Your donation will be publicly listed here below, unless specified otherwise with the communication “noswpatv3-notpublic”.
Links
- Germany will violate 3 international agreements with the Unitary Patent, says FFII: https://ffii.org/open-letter-to-the-bundesrat-on-the-unitary-patent-tomorrow-germany-will-be-asked-to-violate-multiple-international-agreements/µ
- FFII opposes the third attempt to impose software patents in Europe via the UPC: https://ffii.org/ffii-oppose-the-third-attempt-to-impose-software-patents-in-europe-via-the-upc/
- JUVE: Germany hastens second ratification of Unified Patent Court https://www.juve-patent.com/news-and-stories/legal-commentary/germany-hastens-second-ratification-of-unified-patent-court/
- Bristows: German draft UPC legislation progresses through parliament https://www.bristowsupc.com/latest-news/german-draft-upc-legislation-progresses-through-parliament/
- UPC bill entering the Bundestag: http://dip21.bundestag.de/dip21/btd/19/228/1922847.pdf
Benjamin HENRION
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