Double Blow To The EU's Long-Delayed Unified Patent Court, But Supporters Unlikely To Give Up

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Remember the EU's unitary patent plan? No surprise if you don't -- attempts to create a unitary patent system across the region have been dragging on for decades. Back in 2012, Techdirt noted that the European Parliament had finally approved the plan to set up a new Unified Patent Court (UPC) for the EU, but it still hasn't come to fruition. Recently, the scheme has been dealt two major blows that are likely to delay it further, even if they don't kill it off entirely.The first concerns the UK. It's one of the three nations that had to sign up to the UPC agreement for it to come into force. A big question was whether it could or would do so after brexit. The answer turns out to be "no". The second problem comes from Germany, where the country's constitutional court has ruled as follows:

The Act of Approval to the Agreement on a Unified Patent Court ("the Act of Approval") to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the [German] Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority.

the German Constitutional Court effectively rejected the other arguments against the UPC's validity. In essence, they were: that because the UK is exiting the EU that the UPC is no longer valid because the UK was one of three compulsory signatories to it (the other two being France and Germany); and that the European Patent Office (EPO) is insufficiently independent because of "reforms" made by its former president Benoit Battistelli that concentrated power in his hands.

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.

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Big Telecom's Quest To Use The First Amendment To Scuttle Privacy Laws Won't Go Well, Experts Predict

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For a few years now, US telecom mono/duopolies like Comcast and AT&T have been trying to claim that absolutely any government attempt to hold them accountable violates their First Amendment rights. When their lobbyists were pushing to kill FCC net neutrality rules (and FCC oversight of telecom in general), they repeatedly tried to claim the rules violated their right to free speech, despite the fact that as simple conduits they don't engage in "editorial" decisions, making the argument both flimsy and silly.That hasn't stopped them from aggressively abusing the 1A argument constantly to see if it sticks anyway. Verizon has argued it has a First Amendment right to hand your call data over to the government. Comcast has argued its First Amendment rights were violated when it was told to stop blocking competing channels' access to its cable lineup. Charter has tried to argue that requiring it adhere to local video franchise agreements (it signed) similarly violates its free speech rights. Inversely, the industry-friendly FCC has falsely claimed community-owned and operated broadband ISPs pose a dire threat to free speech.And as companies try to scuttle efforts to finally pass some kind of US privacy law for the internet era, this argument has popped up yet again. As you might recall, the telecom lobby convinced the GOP-held Senate to kill off some modest federal FCC privacy guidelines back in 2017. In response, much as we've seen with the net neutrality fight, numerous states have responded by trying to fill the void with an inconsistent platter of state-level privacy guidelines.After effectively creating this problem telecom lobbyists have whined endlessly about these state laws clinging once again to the argument that it somehow violates their First Amendment right to free speech. Hoan Ton-That, the CEO of Clearview AI, has similarly been trying to claim that his company has the First Amendment right to scrape user photos from social media platforms.Given the shaky nature of the US court system when it comes to ignoring hard logic and data (Exhibit A: both the T-Mobile Sprint and AT&T Time Warner merger approvals) it's not impossible that some courts will help prop up these shaky, self-serving arguments. But Colorado Law's Margot Kaminski and Scott Thompson at Slate have a good primer on how they probably won't:

"We are cautiously optimistic that courts won't fall for the simplistic arguments offered by companies trying to fend off new privacy laws, in part because the Supreme Court has recently expanded its understanding of privacy harms. Companies often ignore that the above cases do empower governments to enact privacy laws when they have an interest of the highest order in doing sothat is, when they can articulate significant privacy harms.Of late, the Supreme Court has recognized exactly the kinds of harms implicated by large-scale, ongoing surveillance enabled by technologies such as facial recognition, even when the surveillance is of public space. Such surveillance, the court acknowledged, reveals traditionally sensitive information such as your health (if you are recorded regularly visiting a doctor), your political affiliations (if you are tracked to a protest), your addictions (if you are tracked to an Alcoholics Anonymous meeting), and even your sexuality (if you are tracked to a gay bar). Additionally, surveillance over time reveals patterns in your behavior, sensitive inferences that you may not knowingly reveal at all."

"There is a not insignificant chance that courts will consider most of the wave of new privacy laws (such as Maine's) to be regulation of bargains struck between consumers and companies, not regulations of speech....As we've each underscored in our research reconciling the right to privacy with the First Amendment, the two are often interdependent. Where privacy regulations advance First Amendment interests, they are on stronger legal ground against First Amendment challenges.

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