Germany puts halt on European unitary patent

Europe's effort to create a single patent system has been thrown into confusion following a decision by Germany's constitutional court to halt legislation ratifying it. According to German media reports, since confirmed by a court spokesperson, the court received a complaint from an as-yet-unnamed individual arguing that the …

[Anonymous Coward]

I've no idea but I won't let that stop me from commenting...

I've no idea what particular German right the complainant might be using as grounds. Launching into German stereotype mode, I presume they are a beer manufacturer who's patented the shape of the froth in their lager adverts and are worried that a court based in Luxembourg would be biased against them? :-)

> Starting in 2014, European countries have been slowly ratifying the agreement. So far 12 of the 25 countries involved have done so

It's this that so makes me wish that the UK had voted to remain. Speedy, efficient European processes are the key to our success in the world. </sarc>

[Anonymous Coward]

"Speedy, efficient European processes are the key to our success in the world."

Exactly, as soon as the UK is out, it will be speedier, after all it was among the one that didn't ratified yet, albeit, once again it got its slice of the cake, together Germany, France and Luxembourg - leaving out others. Hope we'll get what London won't...

[Nick Kew]

Re: "Speedy, efficient European processes are the key to our success in the world."

Why are commentards assuming the UK will leave the EPO? It's nothing to do with the EU, and its membership is much wider.

[Anonymous Coward]

"Why are commentards assuming the UK will leave the EPO"

It's about the UPC - not EPO. See https://www.unified-patent-court.org/.

"The UPC Agreement is open to accession by any Member State of the European Union. The Agreement is not open to states outside of the European Union"

[Chairo]

Re: I've no idea but I won't let that stop me from commenting...

can't be the reason, because no self respecting German would drink Lager.

Mine's the one with the pint glass in the pocket...

[Anonymous Coward]

If there is ever an asteroid on collision course with the Earth I sincerely hope what to do about it isn't left in the hands of the EU as we'll be long obliterated by the time they have agree what biscuits they'll be having for the tea break.

[Flocke Kroes]

That is one of the EU's greatest strengths!

Whenever the UK government want to do something mind bogglingly stupid, they wait for some vaguely relevant event to hit the news then rush through emergency legislation. If there were a ten year delay before legislation could take effect then there would be some hope that the worst clauses could be weakened before too much damage gets done.

The best feature of the European patent office is their internal conflict and strikes. The idea of patents was to reward inventors for publishing instructions to build their inventions with a twenty year monopoly. Nobody reads patents any more until litigation is threatened. There are several reasons: the signal to noise ratio is tiny, the 'inventions' are either obvious or broken, the instructions are vague well past the point of uselessness and reading a patent causes triple damages for wilful infringement. As nobody reads patents to discover how to manufacture inventions, publishing is pointless and a 20 year monopoly is an excessive reward even for the dozen or so quality patents mixed in with the tens of thousands granted every year.

The current system of adjudication is poor. A judge with minimal to non-existent understanding of tech attempts to be impartial and the result is random. The new plan is to have patent professionals (with a minimal understanding of the tech) make judgements to enrich their peers. About the only consolation prize from Brexit is some hope that we will escape the European patent court. Avoiding the EPO is a mixed blessing: the UK patent office has equally low standards for granting patents but without the strikes.

[Pat Att]

Re: That is one of the EU's greatest strengths!

You do realise that the EPO is a completely different organisation to the EU (and UPC) don't you?

Also, the judges in the UK are technically qualified (at High Court and Appeals Court levels at least) and are very well respected.

[Anonymous Coward]

Re: That is one of the EU's greatest strengths!

>You do realise that the EPO is a completely different organisation to the EU (and UPC) don't you?

On paper, the reality and politics behind the scenes will be somewhat different.

[Flocke Kroes]

Re: That is one of the EU's greatest strengths!

@Pat Att

Yes.

Patent litigation is still ridiculously expensive with unpredictable results.

[Richard Jones 1]

@AC, Do you mind, Junker will be having a bottle or two of wine break rather than a tea break. Of course after they have decided which wine to try...

No wonder it all workings so well.

[Anonymous Coward]

Article 20 of the German Constitution strictly forbids ...

that any person or organisation can exert force over or take property (e.g. taxes or fines) from inhabitants of Germany, with one single exception: This kind of power is explicitly restricted to the people of Germany (specifically those with German citizenship).

So no person outside of Germany and no such organization is ever allowed to have this kind of power (souvereignity). And an EU wide patent office would fall exactly into such a category because it would exert such power. Such would only be allowed if all its decisions were unanimous and officially appointed persons of Germany were part of all such decisions.

And Article 79 says that Article 20 cannot be changed in its substance.

[Filippo]

Re: Article 20 of the German Constitution strictly forbids ...

That's not an obstacle. Germany just has to agree to enforce the decisions of the UPC. The enforcement would be done by Germans, thus respecting the Constitution.

You could argue that this violates the spirit of Article 20, but if you did, the same argument would apply to any number of international treaties. I don't think the courts would agree with you.

[Bryan Hayes]

Re: Article 20 of the German Constitution strictly forbids ...

No, that is not right. It is not about the actual enforcement, it is about the decision-making. So if a patent-office would make a decision that some patent application is OK then any offence would be a crime, possibly leading to punishment of German citizens or inhabitants. What I said is that such a decision must be done by a gremium with at least one officially appointed German official and that such gremiums must make all their decisions unanimously; but this is probably not the case. For this reason such an organisation would be illegal by German law (and in fact probably by the laws/constituions of most countries in the world).

International treaties are partly a different topic, because here you in most cases you simply have the treaty which is fixed; there is no organisation which makes any decisions later on. Please also note that a treaty by definition is agreed upon unanimously; this is part of the definition of a treaty.

The implication of Article 20 however, is far greater: It explictily forbids most of the EU organisations incl. the EU commission, the EU (fake-)parliarment, most the EU administrations etc. This is the real importance of Article 20.

[Voland's right hand]

Re: Article 20 of the German Constitution strictly forbids ...

The implication of Article 20 however, is far greater: It explictily forbids most of the EU organisations incl. the EU commission, the EU (fake-)parliarment, most the EU administrations etc.

Nope, it does not. These all arbitrate in final instance to Eu court of justice which HAS German representation. In fact, I believe this has gone to German constitutional court more than once and got this answer every time.

The issue with Article 20 and the UPC is that UPC as formulated does not necessarily have German representation. There is no mandate for representation in the UPC statute, there is only mandate for national diversity - some cases require at least 2 nations represented. It does not however say "all" anywhere which means that there may be a chain of decision where German is explicitly excluded. It is illegal as per UK Bill of Rights and most Eu constitutions as currently formulated and it is only a matter of time until similar challenges are successfully raised elsewhere.

Who is the idiot who decided not to apply the relatively successful ECHR and EuCourt formula, dunno. But he is an idiot.

[Filippo]

Re: Article 20 of the German Constitution strictly forbids ...

"The implication of Article 20 however, is far greater: It explictily forbids most of the EU organisations incl. the EU commission, the EU (fake-)parliarment, most the EU administrations etc. This is the real importance of Article 20."

Look, I get what you mean. But this is a political statement, not a legal one. If Art 20 really made the EU literally illegal, any number of nationalist organizations would have successfully challenged the EU on it. I know that calling something you don't like "inconstitutional" feels really good, but this is not really how law works.

[Bryan Hayes]

Re: Article 20 of the German Constitution strictly forbids ...

Wait and see.

Constitutional law is something most people are not really competent at. And the functionary syndicate consisting of all established parties, NGOs, media people have a rather tight grip on public optinion, the courts, the universities, the schools etc.

[Peter2]

Re: Article 20 of the German Constitution strictly forbids ...

That's not an obstacle at all. This is what an obstacle looks like. (English Bill of Rights (1689)

"no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm."

Now, it appears to me that we are more ignoring the letter of that than the spirit, so I don't see how the German's can reasonably and consistently claim that a rather milder creative interpretation of their constitution is a massive breach of their rights.

[Ken Hagan]

Re: Article 20 of the German Constitution strictly forbids ...

"That's not an obstacle [...] This is what an obstacle looks like. "

Where's the Crocodile Dundee logo?

[Nick Kew]

@Peter2

Bill of Rights (1689)

Talk about quoting out of context. That bill was all part of the Hanoverian succession!

But it's a nice thought that the rule of the one-eyed Jock might've been illegal all along.

[John Hawkins]

No-one expects the...

Spanish Inquisition Bundesverfassungsgericht

[DontFeedTheTrolls]

What the world really needs is a worldwide Patent Office. One ring to rule them all (and in the darkness bind them).

Now I know there isn't a whelks chance in a supernova of that happening or working today or in the near future, but that doesn't mean we shouldn't aspire to something that's fair for everyone.

[Flocke Kroes]

They tried that ...

... in East Texas.

[Anonymous Coward]

I think Germany knows that a unified Europe doesn't work...

I reckon Merkel listens more to Trump than we ever thought.

[Trigonoceps occipitalis]

Re: I think Germany knows that a unified Europe doesn't work...

A German unified Europe is so last century.

[MaryTormey]

Silly humans, a bit young to be claiming ownership of all this stuff aren't we? Forget the patent system the universe is open sourced! Life shares it's DNA, plants will not follow your silly rules. Holly, Zoro, Angle Line Wheel. You will never forget it turn you and you will be looking at it. Holly, Zoro, Angle Line Wheel, we will ride the waves ketch a fish, build a spaceship, fly to heaven if you wish.

[JeffyPoooh]

"...a complaint from an as-yet-unnamed individual..."

A complaint from someone who had already applied for a European (Business Model) Patent on the concept of a Unitary Patent System for Europe.

[GrapeBunch]

Re: "...a complaint from an as-yet-unnamed individual..."

Where is Alfred North Whitehead when you need him?

[Babou]

Why a unified patent court system ... but no unified fiscal and social system for Europe? Maybe because it does not benefit the same people. The rest is deeply irrelevant.