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.
- 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
- 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
- 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
- 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
- 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/
- 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/