Unitary Patent, When the House of Cards (Finally) Comes Tumbling Down

On March 20, 2020, the German constitutional court upheld the claim that the German ratification of the Agreement on a Unified Patent Court (UPC) was unconstitutional. This isn't a trivial decision; it could well mean the end of the line for the "Unitary Patent Package": German ratification was one of the requirements for the agreement to enter into force, and the agreement, in turn, was a prerequisite for the regulation implementing the unitary patent system to come into force. A real house of cards.

The regulation implementing the unitary patent system will only come into force (article 18) once the agreement creating the UPC does. And the UPC will, in turn, come into force only once "the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement [took] place" – namely Germany, France and the United Kingdom – have ratified it nationally (article 89). By upholding the claim that the German ratification was unconstitutional—because it was not passed with the parliamentary majority required by law—the court brought down the entire structure of a project that was dangerous to software freedom. It's also worth mentioning that the withdrawal of the United Kingdom from the European Union, "Brexit", had already dealt a heavy blow to the foundation, since the United Kingdom was at that time no longer a "Member state".

To summarize, the UPC jurisdiction's function would be to centralize the deliverance, control, and litigation of patents. As such, the UPC would be judge of and party in of a system from which it gets its revenues, and therefore its means of action. The more patents it grants, the better off it is. As a judge, it could forge case law with a very generous interpretation of the criteria regarding the thresholds of patentability. For instance, what qualifies as "programs for computers", which "as such" is excluded from the scope of patentable inventions (article 52 of the European Patent Convention). The power of interpretation is decisive in law.

As part of it's larger fight against software patents, April actively fought against the "Unitary Patent Package"; it, therefore, applauds this salutary decision of the German constitutional court striking down a nefarious project of software knowledge privatization, even if the coup de grâce stemmed more from a legal technicality, as important as it might have been, than from a political decision. It's hard to claim without a shred of doubt that this project won't rise from the ashes, but, following the German decision, it will be able to do so only with tremendous effort, and therefore time, and probably not without starting again from scratch.

To learn more about the unitary patent and the fight against this project, you can read unitary-patent.eu. It hasn't been updated since the European parliament passed the agreement in May 2015, but is nonetheless information.