
Germany will violate international agreements with Unitary Patent, says FFII - zoobab
https://ffii.org/open-letter-to-the-bundesrat-on-the-unitary-patent-tomorrow-germany-will-be-asked-to-violate-multiple-international-agreements/
======
tpetry
As a german i am quite sure they will ratify software patents. The very sad
part is the people deciding this have absolutely no understanding what they
are doing and that they open the box of pandora.

There is currently almost no invest money in european startups, and if
everyone of these startups is liable for bogus software patents they will have
absolutely no chance on getting big.

~~~
raxxorrax
With von der Leyen being president, I am pretty sure we make the wrong
decision. Yes, some Europeans might think she looks sympathetic, especially
those that don't know her well because of language barriers. That she is on
the position is testament to the democratic dysfunction of the Union.

Officially she is in a conservative party, which eastern European countries
liked very much.

If we want to take democracy seriously, we would need a common language or at
least a common media landscape. We could just use US media of course. They
have the opposite problem that everyone understands what they are saying.

~~~
skocznymroczny
Conservative doesn't really mean much anymore on its own. CDU might be
considered conservative by Western European standards, but it's liberal by
Eastern European standards.

~~~
lumost
Are there any major pan-european parties? (that are taken seriously)

~~~
david_arcos
There is one: [https://european-pirateparty.eu](https://european-
pirateparty.eu)

~~~
read_if_gay_
> that are taken seriously

~~~
kazen44
the pirate party is actually seen as a serious political party in both
european aswell as local/national politics.

~~~
cabalamat
The Pirates came 3rd in Czechia with 14% of the vote last year.

[https://en.wikipedia.org/wiki/2019_European_Parliament_elect...](https://en.wikipedia.org/wiki/2019_European_Parliament_election_in_the_Czech_Republic)

------
orbifold
As someone that has invented novel algorithms I still feel Patents are a net
negative especially for software. I just wish EU would be a better place for
„startup“ innovation. My experience with the university infrastructure in that
area isn’t great:

~~~
ArkVark
The EU is not a great place for innovation, period. Here are the major
problems:

1\. No common language

2\. Incredibly high taxes, particularly sales taxes

3\. Unfinished transition out of Communism in many Eastern Countries

4\. Preference for cheap illegal labor instead of automation

This could be solved by:

1\. Formalising an 'EU English' language so that schools teaching it can open
up around the continent and families can move from one country to another
without having to pay for extortionate international schools

2\. Eliminate payroll taxes, limit sales taxes to a maximum of 10%. Deport all
illegal immigrants (who are huge burdens on the State and society) and raise
pension ages to 70 in order to save money. Limit bachelor degrees to the top
20% of the population and Master's degrees to the top 10%, to encourage people
into the workforce earlier in life. Raise taxes on land and pollution.

3\. Limit EU funding for countries like Bulgaria that have not transitioned to
modern Democracy or Bureaucracy.

4\. Withdraw from the UN convention on refugees, deport all illegal
immigrants, pay and help North African countries to guard their own
coastlines, and replace migrants with robots and automation.

This will immensely boost the living standards of the average European, but
hurt bureaucrats and old-money.

~~~
Denvercoder9
This reads more like a (ultra-)right-wing party program than a substantiated
plan to increase innovation.

~~~
ricohboy
>lower taxes

>deport --illegal-- immigrants

"ultra" right wing

Low taxes and people valuing the rule of law is not "ultra right wing"

~~~
Denvercoder9
Repeated mentions of deporting illegal immigrants and withdrawing from the UN
convention on refugees are typically only found in ultra-right-wing party
programs in Europe.

------
pbowyer
But only in a "limited and specific" way, so that's okay [UK in-joke]

At least we're not the only country wanting to violate international
agreements at present

~~~
akerro
>At least we're not the only country wanting to violate international
agreements at present

Countries do it all the time and there are conflicts because it all the time
everywhere. UK is slightly different because EU is much stronger than UK,
withdrawal agreement is important to keep food, medicine and skills flowing
between borders.

UK government is planning and making first successful steps towards breaking
withdrawal agreement before it's even in place. So why would EU even bother
continuing wasting time and resources in this stupid game where they won't be
the losers?

~~~
Brakenshire
The EU probably will lose the same in absolute terms, but it will be spread
over 400 million people not 60 million. So in terms of rational policy making
the EU should want a deal as much as the UK, but of course in practice if the
impact is less diffuse it’s just less politically important.

~~~
Silhouette
European politics in 2021 will be interesting to watch.

During the endless Brexit debates in the UK prior to the referendum itself,
IIRC the more credible analysis tended to have the EU27 combined losing more
than the UK in absolute economic terms, maybe even twice as much, in the event
of a no-deal Brexit.

The argument was made that the EU could afford to take that bigger hit anyway
and was still in the stronger position in negotiations, because as you say
even a somewhat greater cost would be distributed over many more people.

Then the counter-argument was that the distribution of any costs to the EU
would be far from uniform. For example, one member state in the EU27 was all
but guaranteed a catastrophic outcome if there is a no-deal Brexit: Ireland.
This is part of the reason the NI border issue was such a sensitive topic
during the negotiations. But more generally, some member states are much more
dependent on the UK than others, or more dependent than others in some
specific area(s). Another common examples is that the Mediterranean tourism
destinations get a huge amount of revenue from the Brits each summer (under
normal circumstances at least, maybe not so much this year) and in certain
cases this represents a significant fraction of their entire national economy.

The EU and the Europhile leaders that most of the larger member states have
had in recent times have been very good at showing a united front when it
comes to Brexit, but as we've seen with other issues like the
immigration/refugee situation and the pandemic, that solidarity can rapidly
give way to realpolitik when times get tough. A lot of the EU27 member states
are going to take a hit if we leave the transition period with no deal at the
end of the year, and I wonder how well their faith in and support of the EU
will hold up once real money and real jobs start being lost on both sides of
the Channel.

At this point, I do not expect there to be a deal, at least not a
comprehensive one that is useful for the long term, by the end of this year.
It won't surprise me at all if the cracks start appearing on the EU side soon
afterwards, though whether they will spread as quickly and as deeply as those
likely to form concurrently in the UK is anyone's guess. It also won't
surprise me at all if some important issues that are, in theory at least, EU
competences start to get dealt with more directly by national governments
looking to protect their own interests. Time will tell.

------
m12k
This was what I feared when I voted against the Unitary Patent. I really hope
someone manages to prevent software from becoming patentable in Europe.

------
zoobab
For a more general document, read FFII submission to a public consultation:

[https://ffii.org/ffii-oppose-the-third-attempt-to-impose-
sof...](https://ffii.org/ffii-oppose-the-third-attempt-to-impose-software-
patents-in-europe-via-the-upc/)

------
animationwill
I haven’t heard about this Unitary Patent Court. Is this a new judicial body
in the EU? Where does it’s position rank compared to other EU judicial bodies?

The article seems to be written for those (legislators) who would already know
the background

~~~
kleiba
> I haven’t heard about this Unitary Patent Court.

That's probably intentional.

~~~
chki
What do you mean by that? Do you seriously think that somebody (who exactly?)
is suppressing news about this court? Isn't it _a lot_ more probable that this
is simply a highly technical issue that doesn't get a lot of attention?

As somebody who is somewhat invested into EU law but not into patent law I
have already heard about it by the way.

I'm always very skeptical about this sort of vague accusation, implying that
there is some sort of conspiracy.

~~~
kleiba
> What do you mean by that? Do you seriously think that somebody (who
> exactly?) is suppressing news about this court?

Why are you putting words in my mouth? Especially the "seriously" is
completely out of place since I never said what you claim I did, so why do get
worked up over it?

Where was I implying a conspiracy? Did you consider that there are other
theories that are consistent with my original statement - for instance, it's
completely conceivable that a skilled legislation publishes information about
a proposed law of they _know_ it's likely to create a backlash in (some parts
of) the media in a more subdued way, specifically in order to lower the odds
for getting said negative press.

I agree that this "suppressing news" theory that _you_ brought to the table is
nonsense. But it's also not necessary if you've got a PR person who knows
their job.

~~~
chki
I didn't intend to confront you and I didn't really "get worked up" over this.
Sorry if I was a bit blunt. (and sorry for potential language confusion, I'm
not a native speaker)

My issue with your comment was that you have this accusation (which you call
"probable") that can be perfectly explained in another way ("New European
Patent Law Court" is not going to be a top-selling front page headline)

> for instance, it's completely conceivable that a skilled legislation
> publishes information about a proposed law of they know it's likely to
> create a backlash in (some parts of) the media in a more subdued way,
> specifically in order to lower the odds for getting said negative press.

This is of course technically possible in some situations but considering the
difficult negotiation and ratification process (just look at this
[https://en.wikipedia.org/wiki/Unified_Patent_Court#Ratificat...](https://en.wikipedia.org/wiki/Unified_Patent_Court#Ratification))
of the UPC it's simply very far off from the reality. Especially in Germany
where there is an important pending decision by the Constitutional Court on
this issue which did actually get a lot of media attention.

Edit: As pointed out by Zoobab the decision is no longer pending but has
already been decided.

------
realradicalwash
Aren't other countries that have already ratified UP in violation of those
agreements, too? I.e., how is this about Germany in particular and not about
the European patent system itself?

~~~
zoobab
The software patent directive of 2005 was rejected at the request for
multinationals (IBM, Philips, Microsoft, etc...) who pushed for a central
patent instead.

Some other countries have ratified, some like Spain, Poland, Czech republic
have stayed away for different reasons, like languages and higher costs of
litigation for small companies.

------
shmerl
Parasites and crooks keep pushing software patents. Why can't there be a
stronger push against them?

~~~
zoobab
People need to get out of their seat, which is hard.

~~~
Nasrudith
It is worse than just getting out of their seat really. Even if they regularly
formed mobs of protesters and weren't ignored or took harsh measures to force
the issues quickly they would still come back. Even going to the extreme of
killing everyone who fits the label wouldn't fix it long term as someone else
looking for easy money would try to fill the niche whenever their personal
courage outweighed the ambient terror.

The only way to fix the issue long term is to replace them and fill the niche
better than they can. Needless to say doing so personally risks becoming as
bad as those they set out to replace and creating an automated AI
official/manager/business entity capable of doing their job better than them
and getting it accepted in the face of centuries of stories warning of it
being a bad idea before it even existed are very tall orders. It isn't like
they are telephone switchboard operators who can be replaced by an impartial
dialing mechanism by a disgruntled funeral home owner.

------
beervirus
There are some arguments in there about whether or not the UPC is a good idea,
and although I don't particularly agree with them, they're at least plausible.

The _legal_ arguments, on the other hand... let's just say that they are
definitely the work of a nonlawyer.

------
LockAndLol
Good to know Germany is as suggestible as other European countries to the
influences of big American corporations. The longer the EU stays a loose union
of countries, the longer it will stay susceptible to these kind of moves.
Division isn't unity.

~~~
Wohlf
This may surprise you, but German companies are also heavily invested in
copyright. The dispute between GEMA and YouTube lasted for years.

------
lasermike026
How do I get off this planet?

------
Quanttek
I am not an expert on international law but I am 99% sure that the legal
arguments in the text are partially wrong. Yes, some aspects of the UPC are
not great but it should rather be opposed on public policy grounds, i.e.
negative effects software patents and increased cost of litigation (and maybe
that should've been done during the negotiations on the treaty).

It's a bit difficult to discern their argument as the text is filled with
errors and, seemingly, some words were jumbled around.

1\. Vienna Convention on the Law of Treaties (VCLT): The text of the treaty
has already been agreed upon and states have signed (or even ratified) it.
They are not negotiating the treaty anymore, so the UK (as former negotiating
state) not agreeing to the treaty has no bearing on its entry into force or
violates Art 24(1) VCLT. As the para. states: "A treaty enters into force in
such manner and upon such date as it may provide or as the negotiating States
may agree." This is just about how the date is set, i.e. either it is laid
down in the text or the States agree - and that has already happened. Somewhat
regularly, states will de-ratify treaties or exit negotiations on treaties and
the treaty can and will still go into force.

2\. Art 6 European Convention on Human Rights (ECHR) [1]: According to the
case law on "tribunal established by law", the "law" part must ensure its
impartiality and independence and, thus, primarily governs its composition
(i.e. appointment of judges, assignment to cases (where latter cannot "solely
depend on the discretion of the judicial authorities")) [2]. Note that, even
in the quote cited in the article it is the object of the clause that "the
__judicial organisation __… is regulated by law emanating from Parliament ",
i.e. it concerns their composition (also: "object" = aim of article which does
not necessarily speak to the specific obligations). The composition and the
independence and impartiality of the Court are provided for in Articles 15 to
19 (esp. Art 17: "Judicial independence and impartiality" [3]). Only _beyond
those rules_ (as well others), can the Administrative Committee establish
rules of procedure (which may not contravene the treaty [4]), after consulting
with the Commission on compliance with EU law (Article 41). Regarding fees, it
should at least be noted that the treaty provides for the possibility of
financial aid for SMEs in Art 36(3) [5].

[1]: Case-law guide
[https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf#page=...](https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf#page=45&zoom=auto,-98,723)

[2]: Quoting generously from the guide:

> _209\. The phrase “established by law” covers not only the legal basis for
> the very existence of a “tribunal”, but also compliance by the tribunal with
> the particular rules that govern it (Sokurenko and Strygun v. Ukraine, §24).
> The lawfulness of a court or tribunal must by definition also encompass its
> composition (Buscarini v.San Marino (dec.)). It is the role of the courts to
> manage their proceedings with a view to ensuring the proper administration
> of justice. The assignment of a case to a particular judge or court falls
> within their margin of appreciation in such matters. However, to be
> compatible with Article 6 § 1, it must comply with the requirements of
> independence and impartiality (Pasquini v. San Marino, §§ 103 and 107). The
> judge assigned to a case must be independent of the executive,and the
> assignment cannot be solely dependent on the discretion of the judicial
> authorities (ibid., § 110)._

…

> _212\. In principle, a breach by a court of these domestic legal provisions
> gives rise to a violation of Article6 §1 (DMD Group, A.S., v. Slovakia,
> §61). The Court may therefore examine whether the domestic law has been
> complied with in this respect. However, having regard to the general
> principle that it is, in the first place, for the national courts themselves
> to interpret the provisions of domestic law, the Court finds that it may not
> question their interpretation unless there has been a flagrant violation of
> the legislation (ibid.; Biagioli v. San Marino(dec.), §75; Pasquini v. San
> Marino, §§ 104 and 109). A court which, without any explanation, oversteps
> the usual limits of its jurisdiction in deliberate breach of the law is not
> a “tribunal established by law” in the proceedings in question (Sokurenko
> and Strygun v. Ukraine, §§27-28)._

> _213.The object of the term “established by law” in Article6 §1 is to ensure
> that the organisation of the judicial system does not depend on the
> discretion of the executive but is regulated by law emanating from
> Parliament (Biagioli v.San Marino(dec.), §74; Savino and Others v.Italy,
> §94)._

> _214\. Nor, in countries where the law is codified, can organisation of the
> judicial system be left to the discretion of the judicial authorities,
> although this does not mean that the courts do not have some latitude to
> interpret the relevant national legislation (ibid., and case-law references
> cited)._

> _215.Furthermore, delegating powers in matters concerning the organisation
> of the judicial system is permissible provided that this possibility is
> enshrined in the domestic law of the State, including the relevant
> provisions of the Constitution (ibid.)._

[3]: [https://www.unified-patent-
court.org/sites/default/files/upc...](https://www.unified-patent-
court.org/sites/default/files/upc-agreement.pdf#page=22&zoom=auto,-17,834)
[4]: [https://www.unified-patent-
court.org/sites/default/files/upc...](https://www.unified-patent-
court.org/sites/default/files/upc-agreement.pdf#page=48&zoom=auto,-17,820)
[5]: [https://www.unified-patent-
court.org/sites/default/files/upc...](https://www.unified-patent-
court.org/sites/default/files/upc-agreement.pdf#page=43&zoom=auto,-158,16)

~~~
zoobab
"opposed on public policy grounds, i.e. negative effects software patents and
increased cost of litigation (and maybe that should've been done during the
negotiations on the treaty)."

Problem is that the Court Fees were decided after the treaty has been signed,
by this administrative committee.

And they are defeating the purpose of "making the whole system cheaper", as it
would raise the cost of litigation for a simple case.

We warned about this problem long ago, with the predecessor of the UPCA, the
EPLA:

[http://epla.ffii.org/analysis](http://epla.ffii.org/analysis)

"A litigation case before the EPLA court will at least be twice as expensive
as litigation before the national courts of Germany, France or the
Netherlands."

Stjerna's analysis of the cost situation is roughtly the same, a 3 fold
increase for a simple case:

[https://www.stjerna.de/files/Unipat-
Affair.pdf](https://www.stjerna.de/files/Unipat-Affair.pdf)

~~~
Quanttek
Correct me if I'm wrong, but isn't this supposed price increase in Stjema's
analysis only based on the maximum reimbursement allowance for lawyers? Hence,
this only pertains to the _potential_ for increased costs, not actual
increased costs. Also, the obvious advantage of a European court is that one
does not need to enforce one's patent in all State jurisdictions separately,
right? Stjema shows how this duplication is actually lower than assumed (bc
most companies choose to only enforce it in one country) but wouldn't the
assumption be that the need for enforcement in more than one jurisdiction
increase as the internal market for knowledge products becomes ever-more
integrated? Although I see how it _could_ be more expensive right now (and
software patents still suck)

I would mainly love to see a response regarding the legal side.

~~~
zoobab
The actual percentage of cross-border litigation, now that the UK has left, is
around 7% of all cases. 93% of cases are national only, and will suffer from
an increase of costs just for the beauty of having a pan-European court.

For the legal side and the rules of procedure, we have been informed from
several high profile lawyers (one being on the bench of one of those
decisions) that this would not survive a test in front of the ECHR, once the
UPC is running.

------
jakearmitage
If this was the US, HN would be all over this. Instead, it is rationalizing
it. Interesting.

~~~
fastball
1\. Most people in the thread seem against this.

2\. Maybe it was more true when you posted 2 hours ago, but that is exactly
why comments like this one are not helpful.

~~~
jakearmitage
It is not about being against the subject or not. It's about the way the
arguments are presented. In several threads, when the same scenario plays in
the US, the comments are "ad hominem" attacks to the country and its culture.
When it happens to Germany, the focus is on debating the actual issue.

I'm not American, but the Americanophobia present here and the schadenfreude
towards bad things happening in the US is quite the subject for a study.

Regarding your statement that this comment is not useful: perhaps. I've been
observing this trend and it's been interesting to write notes and have the
groundwork for something more concrete. Then, it will probably be more
helpful.

~~~
vinay427
> I'm not American, but the Americanophobia present here and the schadenfreude
> towards bad things happening in the US is quite the subject for a study.

As an American in a European country, this rather nicely sums up my experience
with _some_ (and to be extra explicit, definitely _not_ all) people from a
wide variety of European countries. I've grown to find it rather amusing
especially as it serves as a convenient litmus test to identify people with
whom it is worth discussing interesting political topics. I suppose my point
is that it's probably not just an HN effect.

Many Americans also have their own bits on which to improve here, obviously,
but I haven't personally been on that side of the table.

------
Angeo34
Von Der Leyen being president should be considered a crime against humanity.

------
Borlands
Maybe this will strenghten Open Source Software

------
ta20200917
Github and other OpenSource hosting sites should pretty much invalidate any
possible software patent claim via prior art, right ?

~~~
aagd
These patents might open the doors for legal battles that small companies
might just not have the resources for. They're a perfect tool for trolls and
bullies.

~~~
pbhjpbhj
You don't need much in the way of resources to invalidate a patent. Proof of
prior use, or published prior disclosure. The measure of proof being balance-
of-probabilities.

If you have that you're immune, show up with your print out, you get costs.

If you lose you might have to, for example, hand over profits.

The flipside is that small companies can use patents to prevent unlicensed
exploitation of their own inventions.

 _This is my personal view and does not relate to my employment._

~~~
clusterfish
That is absolutely not the case, at least in the US. The people who have
actually been frivolously sued and managed to invalidate the patents say
differently: it takes several years and millions of dollars to invalidate just
a few claims in the patent despite ample evidence. Look up the case against
Laminar Research for example.

------
raxxorrax
The law itself makes sense in my opinion, but the way it was introduced makes
the self declaration as being democratic a cheap farce.

I doubt the EU will survive in its current state. 10 years ago that would have
made me sad. There are enthusiasts, but not enough to make it work.

~~~
kzrdude
The enthusiasts need to temper their dreams and expectations - EU is doing
fine, and doesn't need to always become more powerful or more integrated.
Especially not now, when citizens don't want it.

~~~
mamon
In fact I think EU should take few steps back: the perfect state was before
Lisbon treaty, when EU was basically just a free trade zone. Since Lisbon they
try to make it a single country, with unified policy on international affairs,
military, etc, which doesn't make sense.

~~~
glogla
I would say it is the only way it makes sense. The world now belongs to huge
nations like USA, China and India. The only way European people can survive
with their freedom intact is by banding together.

~~~
kzrdude
I think the EU has a very important role to play, like this, but it shouldn't
be the case that we have to be an empire to survive - either against other big
empires, or mega-corps, both kinds of things have a bit too much power. The
mega-corps we can regulate, and (unfortunately) - a powerful EU is needed to
do it in this state of the world.

