Brussels, 23 March 2020 — The third attempt to validate software patents in Europe via a central patent court (UPC) has been stopped by the German Constitutional Court. The Unified Patent Court (UPC) would have given the keys of the kingdoms to the patent industry, and the last word over software patentability. FFII predict that the patent industry will continue to push for an UPC v2.0.
The Unitary Patent was the third attempt to validate software patents in Europe. Software patents are a danger for small companies that cannot afford defense, especially against patent trolls. The UPC court was an international court located outside of the European Union (EU) and outside of the realm of the European Court of Justice (CJEU). This patent court would have had the last word over software patentability, and patent law would have operated in its own bubble.
The Constitutional Court cancelled the ratification over several points, such as 1) a 2/3 majority vote in the Bundestag was required to transfer the national competence to judge patents to an international court; 2) the rules of procedure of such court could not be made by an unelected Administrative Committee, but needed involvement and ratification of Parliament(s); 3) the judges of the UPC are not independent nor do they have democratic legitimacy.
Benjamin Henrion, President of FFII, comments:
The patent industry will try again to push for an UPC v2.0, learning from the obvious legal mistakes they made. But that won’t resolve the fundamental problems that Europe is shooting itself with 2/3 of the european patents granted to non-european companies.
Having a captive patent court without the judicial oversight of the European Court of Justice (CJEU) is also dangerous for society. FFII has recently learned the reason why the CJEU was removed from the 2012 deal:
We heard the rumor that Mr David Cameron was asked by the large UK pharmaceutical firm GlaxoSmithKline (GSK) to remove the CJEU as having a say in patent law (articles 6 and 8). That was the condition to have a deal with the UK. Now that the UK has left, you know why the CJEU was removed from having a say over patent law, and software patents in particular.
Specialized patent courts have shown a dangerous bias for patent maximalism, including on the question of software patents (cfr Alice decision in the US). The recent decisions of the American Supreme Court correcting 17 times those patent courts should have inspired Europeans. As Judge Rifkin said in 1951 about specialized patent courts:
Patent law does not live in the isolation and silence of a Trappist monastry. It is part of a broader set of laws.
The decision of the German Constitutional Court is probably not the end of the story, as many patent litigators are already calling for a revised version of the treaty. The appetite to get it done will be nevertheless lower with the UK’s departure, which has always been the second country for patent litigation after Germany.
Furthermore, the German Constitutional Court still have to decide soon over 4 other complaints, where complainants have raised the issue that the European Patent Office (EPO) cannot be brought to court for maladministration, in breach of the “rule of law” principle. If the court finds the EPO not in line with fundamental rights, this might have a bigger impact over the current system.
“European software industry need to wake up if it wants to survive, software patents and their patent trolls need to go.”
- Decision in German: https://www.bundesverfassungsgericht.de/SharedDocs/Downloads/DE/2020/02/rs20200213_2bvr073917.pdf
- Decision in English (with Google Translate): https://media.ffii.org/upcfcc200320/upc-fcc-googletrans-en.html
- Reuters: Cameron defends GSK’s business practices in China:
- GettyImages video: David Cameron visits Glaxo Smith Kline plant in Cumbria, patent box used to avoid paying taxes https://www.gettyimages.de/detail/video/david-cameron-visits-glaxo-smith-kline-plant-nachrichtenfilmmaterial/686118106
- FOSSPatents: Practitioners and companies far from giving up on Unified Patent Court – intergovernmental renegotiation will open door to improvements http://www.fosspatents.com/2020/03/practitioners-and-companies-far-from.html
- 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/