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<b>From:</b> Benjamin Henrion <bhenrion@ffii.org><br>
<b>Sent:</b> 19 February 2020 12:27:57 WET<br>
<b>To:</b> rms@ansol.org<br>
<b>Subject:</b> Germany can no longer ratify the Unitary Patent due to Brexit and the established AETR case-law, says FFII<br>
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<pre class="k9mail"><hr> Germany can no longer ratify the Unitary Patent due to Brexit and the<br> established AETR case-law, says FFII<hr>PRESS RELEASE — [ Europe / Brexit / Patent / Democracy / Economy / Software ]<br><br>Berlin, 19 feb 2020 - Germany cannot ratify the current Unitary Patent due to<br>Brexit and the established AETR case-law. The ratification of the UPC (Unified<br>Patent Court) by Germany would constitute a violation of the AETR case-law,<br>which was used during the EPLA negotiations in 2006 to consider a deal with<br>non-EU countries, such as Switzerland. FFII says that if Germany proceeds with<br>the ratification, it will open up the possibility for a second constitutional<br>complaint. The Unitary Patent signals the third attempt to validate and expand<br>software patents in Europe.<br><br>Following Brexit, the UPC has become a different kind of agreement, whose<br>validity passes now under the supranational jurisdiction and competence of the<br>EU (Articles 216/218 TFEU). UK is now a “third state” within the meaning of<br>AETR case-law, under the current transition period of the Withdrawal Agreement<br>and, as such, the authoritative legal precedent of AETR applies now.<br><br>If Germany is misled by the patent industry and ratifies the UPC, this would be<br>a serious breach of procedure under EU law by the German government, and a new<br>constitutional complaint will be launched.<br><br>The “AETR” case-law (22/70) of the Court of Justice of the EU, makes clear<br>that:<br><br> “Each time the Community, with a view to implementing a common policy<br> envisaged by the Treaty, adopts provisions laying down common rules, whatever<br> form they may take, the Member States no longer have the right, acting<br> individually or even collectively, to undertake obligations with third<br> countries which affect those rules or alter their scope.“<br><br>Accordingly, the EU has the competence to sign an agreement with the UK<br>relating to the subject matter covered by the UPC. The fact that the UK has<br>withdrawn from the EU, clearly brings the matter within the competence and<br>supranational jurisdiction of the EU.<br><br>This practically means that the ratification procedure for the Agreement on the<br>Unified Patent Court (UPCA) must now come to an end, as that Agreement no<br>longer applies due to the current significant changes (i.e. Brexit) in the<br>membership requirements of its own ratification rules. In addition, according<br>to the Common Rules of Procedure of the German Federal Ministries (Gemeinsame<br>Geschäftsordnung der Bundesministerien), section 43 (1) number 8, calls for the<br>presentation of the connections to and the compatibility of German legislative<br>initiatives with the EU law.<br><br>It follows that the German Government must examine first whether or not the<br>UPCA can still be compatible with EU law, and in particular, now that the UK<br>has withdrawn from the EU. In view of the established case-law in “AETR” and<br>the exit of the UK from the EU, the UPCA is clearly no longer compatible with<br>EU law.<br><br>In this respect, as the question of compatibility of UPCA with EU law has<br>already been addressed to the highest court in Germany, the German<br>Constitutional Court is now required to refer the matter to the CJEU for a<br>preliminary ruling under the provisions of Article 267 TFEU, before the German<br>judges reach a decision.<br><br>The Unitary Patent is a highly controversial and extreme issue, as it allows<br>new international patent courts to have the last word on the development and<br>application of patent law and industrial property monopolies including, more<br>seriously, the validation and expansion of software patents, that is the key<br>sector on which whole industries and markets depend. It also leaves the Court<br>of Justice of the EU in the weakest position to have only a say in few limited<br>tech matters. Such an unprecedented takeover of the EU’s institutional powers<br>by external, international organizations, of which the Unitary Patent system<br>consists, is dangerous and can undermine permanently democratic governance and<br>with it, economic development and sustainability in entire states in Europe.<hr>Links<hr>1. AETR caselaw on EUR-Lex: Judgment of the Court of 31 March 1971 – European<br> Agreement on Road Transport – Case 22-70:<br> <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61970CJ0022">https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61970CJ0022</a><br><br>2. Council document on ‘Institutional aspects of the EC’s accession to the<br> European Patent Convention’:<br> <a href="https://data.consilium.europa.eu/doc/document/ST-13742-2001-INIT/en/pdf">https://data.consilium.europa.eu/doc/document/ST-13742-2001-INIT/en/pdf</a><br><br>3. Council document on ‘Request for an opinion by the European Court of Justice<br> on the compatibility under the EC Treaty of the envisaged Agreement creating<br> a Unified Patent Litigation System (UPLS)’: “IV. COMMUNITY COMPETENCE […]<br> (32) As regards European patents, the aim and content of the measure<br> consisting in the establishment and organisation of a specialised<br> jurisdiction of an international nature for cases concerning patents, are<br> essentially a matter that falls within Member States’ competence. However,<br> some of the provisions of the envisaged Agreement relate to matters for<br> which the Community has already exercised its internal competence by laying<br> down common rules. In the light of the case law of the Court of Justice,<br> Member States no longer have the right, acting individually or collectively,<br> to enter into obligations with third countries which may affect these rules<br> or alter their scope (ref19 AETR)”:<br> <a href="https://data.consilium.europa.eu/doc/document/ST-10571-2009-INIT/en/pdf">https://data.consilium.europa.eu/doc/document/ST-10571-2009-INIT/en/pdf</a><br><br>4. Unitary patent protection systems in Europe, Masahiko Matsunaka: ”Since the<br> EPLA establishes the European Patent Court and confers jurisdiction to the<br> court, it obviously affects the Brussels Regulation. Moreover, the states<br> participating in the EPLA negotiation are not only EU member states, but also<br> include non-EU states (e.g., Switzerland). Therefore, the EU member states<br> would have no powers to institutionalize the EPLA based on the AETR doctrine”<br> <a href="http://www.iip.or.jp/e/summary/pdf/detail2004/e16_20.pdf">http://www.iip.or.jp/e/summary/pdf/detail2004/e16_20.pdf</a><br><br>5. Oshaliang: Why Does the U.S. Supreme Court Keep Reversing the Federal<br> Circuit? “the Federal Circuit was perceived by some as too pro-patent, with<br> concerns that this favored weak patents and patent trolls. Whether or not this<br> was a concern of the Court, recent decisions of the high court have mostly cut<br> back on patent protections that had been upheld by the Federal Circuit.”<br> <a href="https://oshaliang.com/newsletter/why-does-the-u-s-supreme-court-keep-reversing-the-federal-circuit/">https://oshaliang.com/newsletter/why-does-the-u-s-supreme-court-keep-reversing-the-federal-circuit/</a><br><br>6. Permanent link to this press release:<br> <a href="http://blog.ffii.org/germany-can-no-longer-ratify-the-unitary-patent-due-to-brexit-and-the-established-aetr-case-law-says-ffii/">http://blog.ffii.org/germany-can-no-longer-ratify-the-unitary-patent-due-to-brexit-and-the-established-aetr-case-law-says-ffii/</a><hr>Contact<hr>Benjamin Henrion<br>FFII Brussels<br>Tel: +32-484-56 61 09 (mobile)<br>Email: zoobab@gmail.com<br>Twitter: @zoobab<br>(French/English)<hr>About FFII<hr>The FFII is a not-for-profit association registered in twenty European<br>countries, dedicated to the development of information goods for the public<br>benefit, based on copyright, free competition, open standards. More than 850<br>members, 3,500 companies and 100,000 supporters have entrusted the FFII to act<br>as their voice in public policy questions concerning exclusion rights<br>(intellectual property) in data processing.<br></pre><br>-- <br>Sent from my Android device with K-9 Mail. 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