Saturday, January 16, 2021

Samsung appeals Ericsson's anti-antisuit injunction from Texas to the Federal Circuit

On Monday, Judge Rodney Gilstrap of the United States District Court for the Eastern District of Texas granted Ericsson an anti-antisuit preliminary injunction against Samsung's Chinese antisuit action, but backtracked a bit by narrowing the scope as compared to the temporary restraining order (TRO) in the same matter. I had criticized several aspects of the TRO and the PI-related case management. It was almost impossible to imagine that an appeals court would have upheld the extremely overreaching parts Judge Gilstrap has jettisoned, but what about the rest?

Anything but unexpectedly, Samsung has now given notice of its appeal of the PI order to the United States Court of Appeals for the Federal Circuit (this post continues below the document):

21-01-15 Samsung Notice of ... by Florian Mueller

The Federal Circuit hasn't docketed the appeal yet, presumably because notice was given late in the day. On Monday the Texas court will probably provide a set of documents to the appeals court, and then we'll see the exact scope of Samsung'S appeal and the legal arguments.

Fifth Circuit law is technically controlling, but the Federal Circuit has its own culture and philosophy. As always, a lot will depend on what panel this is assigned to. I just hope--and I really am reasonably confident, having listened to many Federal Circuit hearings over the years--they won't just be driven by instict in terms of seeking to maximize the number of U.S. patent cases that get filed and litigated. Two former Federal Circuit chief judges have made filings in this matter: Randall R. Rader is pretty sure of the fairness and overall quality of the Chinese case, while Paul Michel filed an amicus brief in support of Ericsson's position and is far more interested in attracting lots of patent cases to the U.S. than in such concepts as international comity. This is serious stuff: we're witnessing a global anti-anti-antisuit hot mess, and a race to the bottom. If every jurisdiction participating in those long-distance battles just focuses on how to maximize its number of cases, and no one defers to some other court at some point, the jurisdiction that imposes the sanctions that hurt defendants the most will be the winner who takes all. And that's not going to be the United States with its constitutional limits.

An international treaty on patent litigation might be needed to put the genie back in the bottle. In order to be binding on the courts, such a treaty would have to be ratified by national legislatures. We're not yet at the point where an intergovernmental solution is on the horizon. I just wanted to point out that this is getting out of hand and the jury is still out on whether the appeals courts are willing and able to fix the problem. The UK Supreme Court made its fateful Unwired Planet decision in August, and with the UK having left the EU (which enables them to outvaccinate any one of the largest continental countries by a wide margin), the CJEU can't correct that terrible mistake anymore. Nor can the Federal Circuit, of course--but it can make the American legal community proud and leave it to others to sow chaos.

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Best outcome of impeachment for development of law: Supreme Court clarifies meaning of "high" in "high crimes and misdemeanors"

After years of making pro-Trump comments (except in connection with patent policy, where a couple of his appointees did terrible things), I was shocked by the absurd positions he took on SARS-CoV-2 last year--even by utterances that weren't nearly as crazy as suggesting that one might inject disinfectants. Those who have read my comments on other issues know that I view COVID-19 as the moment of truth. Politicians who failed to do their job in that most critical context in a long time don't deserve to be supported or trusted, but I found myself in agreement with politicians I fundamentally disagreed with on other issues. Only a minority of Trump supporters has a similar set of priorities, but apparently enough for him to lose the election. While some conspiracy theorists portrayed the outcome of the mail-in vote in various places as a statistical anomaly, there actually is a simple explanation: people so afraid of COVID they'd rather vote by mail were extremely unlikely to have faith in Donald Trump. What might have been a statistical anomaly under "all other things being equal" circumstances just doesn't apply here.

Similarly, the fact that Trump held huge rallies, unlike the President-elect, doesn't tell us anything about the fairness of the election. Even under normal circumstances, rallies aren't tallies. But they do normally indicate the enthusiasm of a party base. The 2020 U.S. presidential campaign was totally different, mostly because of COVID, and secondarily because many people didn't have to be huge Biden fans in order to vote for him: this time around, even Hillary would most likely have won. And I almost feel like predicting that four years of the Biden Administration, unless his waning physical fitness requires him to step down too early, will be followed by one or two Harris terms, and I'd even predict she'll win Texas, considering some overall trends and developments, including some relocation decisions by tech companies.

The GOP will have to reinvent itself and probably won't even start that process anytime soon. A tectonic shift comparable to the one under FDR--who broadened the appeal of the Democratic Party--would be needed for a GOP candidate to be elected POTUS again. Without the Electoral College, the GOP would already have had to reposition itself on a lot of issues, as they won the popular vote in only one out of the last eight presidential elections, and who knows whether that one exception would even have happened without 9/11.

It's obviously hard to strike the right balance between giving everyone, including minorities, fair access to an election and making an election secure. Congressman Dan Crenshaw and his guests, one of whom is a University of Texas law professor, made great points about that in this podcast. Shortcomings should be addressed and I hope Democrats will be principled enough to do that in certain states. That said, there's really no reason not to assume Trump's covidiocies--and not a multi-state conspiracy to commit election fraud--cost Trump the election.

There have been credible reports of Trump being "entranced" by watching the Capitol riots on TV, a state of mind that prevented him from saying the right things in the right away-and sooner. The American system of government wasn't under serious threat for even one second, but if those reports are indeed true (all I can say is they sound credible and they're consistent with everything that is known, including the timeline), then it would even have been warranted to invoke the 25th Amendment.

The impeachment resolution by the House of Representatives isn't based on his behavior in front of his TV set in the White House, which disqualifies the person in some fundamental ways (I'm really very disappointed), yet doesn't qualify as a "high crime and misdemeanor." So the article of impeachment talks about his call with Georgia Secy. of State Brad Raffensperger as an effort to subvert the election certification process, and about incitement of an insurrection in accordance with the 14th Amendment.

Trump's defenses are obvious: he's already said the Raffensperger call was about "settlement" of pending litigation, and in his January 6 speech he used the word "peacefully" (though in that same speech he urged supporters to "fight like hell"), so there's a free-speech issue that the Supreme Court resolved in Brandenburg v. Ohio, clarifying that it's all free spech until someone incites "imminent illegal action" (but by design--"likely" to have the effect--not coincidence).

What individual Republican senators (especially the 20 who need to run for re-election next year unless they retire) consider to be best for their career remains to be seen. For their party, it would undoubtedly be best if a sufficient number of them joined Democrats and impeached Trump. Given that the sole remedy relevant after he's left office will be the disqualification from any future federal office, there is, however, the possibility of the Supreme Court hearing an appeal. And that's what I actually hope will happen, but for the sake of clarification.

As the Cornell Law School webpage explains, there are different opinions on what the "high" in Treason, Bribery, or other high Crimes and Misdemeanors" means.

What would benefit Trump would be an interpretation of "high" as "very serious," as some argue that the word "other" means it must be at a level with treason and bribery. But the alternative interpretation--and that's actually the one I prefer--is that "high" in this context refers to the office of the one who committed the alleged wrongdoing, not in the sense of making anything reproachable a potential basis for impeachment, but connecting it to how someone carried out their duties as opposed to, say, a minor offense in their private life.

The line-drawing problem here is that too low a standard would give Congress too much latitude. In parliamentary democracies, such as some European countries, the head of government can be voted out of office by a parliamentary vote. The U.S. system is more presidential. And now, with all that happened on 1/6, there is a situation where the exacting standard of criminal law may not be met. Also, the fact that it's "only" about disqualification (because it's too late for removal from office) doesn't change the standard, though some commentators almost make it sound like that.

The Senate basically makes its own case law so far in presidential impeachment trials. I don't think it would be wrong for senators to vote for impeachment even if Trump's actions might be protected in a conventional criminal proceeding by rules affording settlement talks and free speech strong protection. Honestly, I would be disappointed if the Senate acquitted him because future presidents should learn a lesson even before they take office so they refrain from actions like that in the first place.

The Supreme Court can clarify what the word "high" means in this particular context. I know some don't think so, but I found arguments in favor of review more convincing, though I don't mean to say that--in more timely cases--a removal from office should be delayed that way. I hope the SCOTUS will have the last word. The judges appointed by Trump, at different levels of the judiciary, have recently shown their independence. Democrats will find it hard to trust them on this one, but I believe they should. Justice Barrett is new, but Justices Gorsuch and Kavanaugh have been serving on the SCOTUS for some time already and they're going to look at the issue, not the party. They know that whatever they decide will apply next time that a Democratic president may engage in problematic conduct. And there may now actually be a line of Democratic presidents that will be longer, possibly far longer, than many Republicans would acknowledge. Even without Trump's disgraceful fourth year in the White House, Texas was going to turn blue in the near term, as Arizona has (possibly on a lasting basis), and Puerto Rico can't be denied statehood for too much longer. One can only hope that Democratic policies won't move too far to the left...

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Friday, January 15, 2021

Dusseldorf Regional Court stands by CJEU referral of patent licensing questions, Nokia's interlocutory appeal goes up to Dusseldorf Higher Regional Court

While the four members of the panel discussion I published as a podcast earlier this week expressed a diversity of views, there was a consensus about the potentially high impact of the Dusseldorf Regional Court's decision to refer a set of standard-essential patent (SEP) licensing questions to the Court of Justice of the European Union (CJEU). But those questions haven't arrived in Luxembourg (the CJEU's seat) yet, as Nokia brought an interlocutory appeal last month.

The way those interlocutory appeals work in Germany is that the lower court firstly treats it as what in the U.S. would be called a motion for reconsideration. If it changes mind, the appeal has succeeded. Otherwise the appeal will go up to the next higher court.

The latter is what has happened here. Just today, the Dusseldorf Regional Court's 4c Civil Chamber (Presiding Judge: Sabine Klepsch) handed down its decision and, as presumably everyone (even Nokia) expected, defended its referral order. Prior to doing so, the panel held that the decision isn't appealable in the first place. Appealability was addressed by Nokia's outside counsel from the Arnold & Ruess firm at length, but to no avail. So from the lower court's perspective, Nokia's appeal is both procedurally impossible (as the court noted that most German courts consider those appeals inadmissible and the cases cited by Nokia were deemed inapposite) and substantively meritless. By disagreeing with Nokia in only one of those two ways, the court wouldn't have had to reach the other part, but sought to make its order doubly appeal-proof.

So there are two hurdles for Nokia to overcome now before the appeals court, the Oberlandesgericht Düsseldorf (Dusseldorf Higher Regional Court). I'd be very surprised if this interlocutory appeal succeeded there. Affirmance may take a few weeks, and then, finally, the issues raised will be put before the top EU court.

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Tuesday, January 12, 2021

Podcast on developments relating to component-level SEP licensing, particularly the referral of a set of questions to the CJEU by a German court

About a year after my Brussels conference on the component-level licensing of standard-essential patents (SEPs), I invited the members of the first panel discussion of that conference to produce a podcast

  • for a general update on key developments surrounding the component-level licensing of SEPs since our November 2019 panel, and

  • to discuss in depth the implications of the Dusseldorf Regional Court's decision to refer to the Court of Justice of the EU a set of key legal questions (relating to component-level licensing as well as the application of the Huawei v. ZTE framework).

I'm so grateful to all four of them (in alphabetical order of last name: Professor Christian Donle of Preu Bohlig, Jay Jurata of Orrick Herrington Sutcliffe, Paul Lugard of Baker Botts, and Pat Treacy of Bristows) accepted. They rocked again! Never change a winning team. So rather than talk much more about this podcast, here's the recording (total duration: approx. 69 minutes):

Hope you find it informative.

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Monday, January 11, 2021

Judge grants in part Ericsson's motion for preliminary anti-antisuit injunction against Samsung's Chinese action

In my last post of the year 2020, I criticized rather harshly the overreaching nature of Judge Rodney Gilstrap's temporary restraining order (TRO) in Ericsson v. Samsung (Eastern District of Texas). The TRO has just been converted into a preliminary injunction (PI), but not in its entirety. A couple of elements of the TRO that I thought went too far have been dropped: Ericsson can't use the U.S. court to force Samsung to provide documents from the Chinese litigation, and should Ericsson seek any indemnification for fines the Chinese court may impose as a result of Samsung's antisuit injunction, it can do so only to the extent that such fines relate to the impact of the Chinese antisuit injunction on Ericsson's action in the Eastern District of Texas, but not with respect to cases in other jurisdictions. Here's today's PI order (this post continues below the document):

21-01-11 Ericsson v. Samsun... by Florian Mueller

This order is appealable to the Federal Circuit, and an appeal is very likely. While slightly less broad than the TRO, this PI still raises serious questions. At the heart of Judge Gilstrap's decision to enjoin Samsung is that he believes the FRAND case before him is different from Samsung's earlier-field Wuhan case:

"The Wuhan Court is asked to provide a number. This Court is asked to evaluate conduct. The legal questions presented to each Court are different."

Similarly, Judge Gilstrap says Ericsson's U.S. case is about a cross-license, while Samsung asked the Chinese court to provide "global FRAND rate for Ericsson’s 4G and 5G SEPs in isolation."

This, to me, looks pretty contorted. In order to "evaluate conduct" in a licensing negotiation, Judge Gilstrap will have to look at the numbers. And the fact that Ericsson asks for a superset of the determination Samsung previously sought in China doesn't mean Ericsson isn't seeking something in the U.S. that Samsung previously asked a Chinese court to do.

It's also a non sequitur to me that Samsung's Chinese action was unfair because the ex parte injunction there can only be done away with by means of a motion for reconsideration, as opposed to the U.S. mechanism under which a TRO needs to be converted into a PI within two weeks or goes away automatically. The order claims that this means a different standard, but doesn't explain whether it really does mean it's harder for Ericsson in China than it was for Samsung in Texas to achieve a different outcome. The former Chief Judge of the United States Corut of Appeals for the Federal Circuit, Randall R. Rader, had actually explained in a sworn declaration that the Chinese proceedings are fair.

Judge Gilstrap also notes a USITC complaint Samsung brought against Ericsson on January 7, 2021. Bloomberg reported on it. There's recently been a flurry of filings, mostly by Ericsson, which is presently suing Samsung over 12 patents in the Eastern District and brought a number of cases in Germany, Belgium, and the Netherlands. I'll try to find out more about all those filings and will comment on them on another occasion.

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Thursday, January 7, 2021

Stifling creativity, chilling innovation, and now even killing people: the EU needs to rethink its approach to industrial policy

With VaxGate, Brussels--as a metonym for the EU--is going through its worst credibility crisis ever, while Brexit is already a success story in one particularly important regard: the UK is outvaccinating the Continent. It's also a fact that British elite universities outperform their continental counterparts in global rankings.

Even EU-friendly mainstream media such as German newsweekly Der Spiegel now feel forced to talk about some of what's going wrong. Spiegel author Michael Sauga today criticizes the Merkel-Macron doctrine (to me, they're simply the Axis of Evil, or even the Axis of Death) that COVID vaccines be both developed and manufactured in Europe in order to become more independent from other economic regions. Just yesterday, the European Commission granted provisional approval to Moderna's mRNA-based COVID-19 vaccine, further to a recommendation by the European Medicines Agency. While Moderna's vaccine is already in use in the U.S., the EU clearly treated it as its lowest priority among the top six candidates, simply because it's an American company that didn't have much, if any, European manufacturing capacity at the time.

If I had to choose which of the vaccines to take today, and if I even had the choice, I'd presently--subject to what we'll learn throughout the year--prefer Moderna's vaccine. The only known issue with all those mRNA-based vaccines is that the risk of an anaphylactic shock is about 20-25 times higher than with conventional vaccines. I don't have any known allergies (there a few measurable ones, but so minor I don't even notice anything, such as when I eat hazelnuts), so I'm particularly unlikely to be that one person among 40,000 or 50,000 who would suffer an anaphylaxis. I'd just want to be under observation for 30+ minutes after the jab. What makes me feel better about Moderna's vaccine than Pfizer/BioNTech's is that it may be slightly more advanced. BioNTech hopes to make further progress this year to bring down the cooling requirements. With Moderna already being where BioNTech is trying to get, it's possible that Moderna's product is more mature. Both are 95% effective, though it remains to be seen how well they work against new mutations (for B.1.1.7, a gradual reduction of efficacy is possible, but for the South African mutation, it's not even clear whether the existing vaccines will work at all).

So the EU initially treated as a low priority the COVID-19 vaccine that may actually turn out to be the best of all, and has already turned out to be one of the first two to become available. For industrial policy reasons. One has to be highly unethical or simply deranged to let so many people die for some ill-conceived industrial policy.

When Merkel and Macron were just the Axis of Evil--not yet the Axis of Death--, they already did a horse trade that was unbelievably stupid: Article 13, which then became, after a renumbering, Article 17 of the EU Copyright Directive. It's still high on the EU Commission's priority list. The Merkel government primarily wanted something else: the news snippets tax. That's because German media giants had lobbied for it very hard. For France, however, upload filters were going to be the grand prize. So Merkel and Macron agreed to do both.

There's something I really, really wish to clarify here: I don't disagree that some smart regulatory approaches are needed to certain platforms that have become extremely powerful. In fact, some of what they're discussing in the EU with respect to "gatekeepers" makes a whole lot of sense, and a majority of the House of Representatives raised similar concerns. The question is, however, what will ensure a level playing field and what is just going to be negative on the bottom line, like cutting one's nose to spite one's face.

Upload filters stifle creativity. The right holders who benefit from it are collecting societies, and they are problematic in various ways. Ultimately, just like some overreaching data privacy rules, such a framework may even raise barriers to entry.

Some simple-minded, totally incompetent people came up with the idea at some point that copyright could have a redistributive effect favoring France and Europe as a whole. Of course, the collective European market share of copyrightable works found on Internet platforms used in Europe is far higher than the market share of European platform makers. So if you give copyright holders more leverage over the platforms, it means that far more money will flow in a certain direction than in the opposite one. But those Merkel-supported French idiocies, such as upload filters, are not well-thought-out. From a holistic perspective, they do more harm than good. They just please some lobbyists, and some fools.

It gets slightly more complex, but no less clear, in the automotive standard-essential patent (SEP) licensing context. In that case, there isn't even a clear French beneficiary such as copyright holders or Sanofi (which is going to get a lot of money for a vaccine research project that is otherwise a huge disappointment and failure so far). There actually would be French beneficiaries--car makers like Renault and automotive suppliers like Valeo--from the better policy alternative. But French EU fake news commissioner Thierry Breton is beholden to Nokia and Ericsson, probably just because he has a long history with them due to his own industry background (France Telecom).

Not only Europe's automotive industry but even more so the wider IoT industry would have benefited from allowing the European Commission's Directorate-General for Competition (DG COMP) to investigate Nokia's refusal to grant exhaustive component-level licenses to "all comers" from all tiers of the automotive supply chain.

The concept of "digital sovereignty" (which in this case means having European telecommunications infrastructure providers) could and should be separated from competition enforcement. Give them subsidies, or allow their national governments to do so. But don't let other industries--automotive and, more generally, IoT--suffer, especially when the vast majority of 5G patents aren't even owned by EU-based patent holders.

Ideally, industrial policy shouldn't influence antitrust enforcement. It's a reality that it often does, but if that's what you want to be the case, you at least have to think things through holistically. That doesn't appear to be a strength of people like Macron and Breton, and Merkel just follows them because she lives in an ivory tower and is detached from reality. A few years ago, she referred to the Internet as "Neuland" ("new land" or "unchartered territory"), which tells you all you need to know in this respect.

IP policy is industrial policy, but upload filters are insane. Competition enforcement should be principled, yet is often driven by industrial policy considerations, and whether you look at the merits of those complaints against Nokia or take an industrial policy perspective, the result would be the same: go after Nokia (and, by extension, Ericsson). And when it's about life or death, such as in the SARS-CoV-2 context, industrial policy almost literally kills people.

If the EU takes a smart and holistic approach to its Digital Markets Act/Digital Services Act initiative, and to competition enforcement in the app distribution context, its efforts may actually have a positive impact. But where things stand today, EU industrial policy, especially if devised by French politicians, all too often results in extremely stupid decisions. The EU can rely on many journalists failing to figure it out, or being ideologically biased and therefore unwilling to speak truth to power. In European media you find all those excuses that no one could foresee which vaccine research projects were going to be most successful when one would just have to compare the timeline of the EU's decisions (all of which are public) with the official progress reports of those projects (all of which are public, too, such as on the New York Times Coronavirus Vaccine Tracker). But ignorance, ideology, and spin-doctoring only do so much. Throughout this year, the EU's most miserable failure will become clearer and clearer. The decision makers in Brussels and their advisers will have realized by now that they've failed European citizens. Will they draw the necessary conclusions from it and do better in other areas?

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Wednesday, January 6, 2021

Compared to the EU's COVID VaxGate, Watergate was merely a transgression: two questions of life or death the EU can't answer satisfactorily

I already mentioned in my first post this year about the EU's miserable failure to buy COVID-19 vaccines (as compared to the U.S., Canada, the UK, Israel, and Bahrain), primarily because the French government didn't want the EU to buy too many doses from non-French companies. That scandal now has a far higher profile, with two of the three parties in Merkel's governing coalition already having voiced criticism in public. Many politicians and reporters in other EU member states haven't understood the significance of this yet. Even France itself will suffer far more from the consequences of Macron's worst initiative than it ever stood to gain.

Merkel and Macron are the Axis of Evil. Many thousands of Europeans will die because of their failure. That's why this is so much worse than Watergate. The EU's VaxGate amounts to political mass murder.

Two questions about COVID-19 vaccine purchases force the EU Commission, the Merkel government, and all their apologists (especially but not only in state-owned media) to be evasive (or to lie):

  1. German newsweekly Der Spiegel cited anonymous sources involved with the EU's vaccine procurement effort as saying that Macron (apparently even personally) told the EU not to buy the 500 million doses of Pfizer/BioNTech's vaccine that could have been in the November 11, 2020 purchase agreement. At that point, Pfizer/BNT had reported amazing Phase 3 results and were clearly ahead of everyone else, and other governments had already secured huge amounts of that vaccine several months earlier. But Macron didn't want an American-German joint project to save Europe from COVID, so he vetoed anything that would have resulted in Pfizer/BNT selling more doses to the EU than French Sanofi, which at that point had already fallen far behind.

  2. A closely related question they can't answer is why the EU signed a deal with slow-moving Sanofi (which won't be able to ship before late 2021, if ever) on September 18, but with front runner Pfizer/BNT almost two months later--while other major purchasers (U.S., UK, Israel etc.) had done so way earlier.

    The difference of two months actually understates the asymmetry by far. One has to look at how much progress a given research project had made at the time. The EU signed with Pfizer/BNT only after they reported stellar results from their Phase 3 study, while Sanofi got a yuuuge contract before it even had any Phase 1 results to show. This is like if one athlete got the Olympic gold medal before the race even starts, while another won't get it until after crossing the finish line ahead of the rest of the world.

These two questions get asked. Obviously, the EU apologists and Merkel sycophants among European political reporters wouldn't raise such tough questions. But there are plenty of unbiased reporters out there, and the analytically stronger ones among them have figured out that those two questions get to the heart of the problem.

If anyone points to the need for diversity (of vaccines, and also of vaccination technologies), that's not wrong but fails to address the above questions. You could have had diversity and still could have placed the right bets. That's simply the combination those other buyers, such as the U.S., achieved.

Diversity is related to costs. But that's a smokescreen. The cost of those COVID lockdowns in Europe is so high that even if the EU had matched offers by the Trump Administration and Israel, and even if they had contractually committed to such quantities in the aggregate of multiple vendors that they could have vaccinated every EU citizen ten times, it would have been cheap compared to the costs of those lockdowns. To put this into perspective, Pfizer/BNT gets about 12 euros per dose from the EU. That's about 25 per vaccinated person. Multiply this by four (other vaccines actually cost less, or even much less), and you arrive at a cost of €8 billion for Germany (approximately 80 million inhabitants), where the cost of a protracted lockdown amounts to hundreds of billions of euros as Dr. Daniel Stelter and other economists have pointed out. Frankly, "penny-wise and dollar-foolish" is a gross understatement when you're dealing with a cost to Europe that is practically in the trillions of euros versus a cost in the billions.

One of the things you'll hear from the EU Commission is that they deny any political reason behind the Sanofi deal. Let's give them the benefit of the doubt that they had a reasonable basis to assume Sanofi would deliver (it actually ran into serious problems after the deal). But the question is not whether the Sanofi deal might have made sense if viewed in isolation. What neither the EU nor the Merkel Administration have denied so far is that the French government prevented the EU from upping the purchase volume in its Pfizer/BNT deal, especially as it was signed after Phase 3 and at a point when Sanofi was far, far behind. That was just pharma protectionism and nationalism on the French government's part--which will cost many thousands of lives this year, make many people suffer COVID symptoms, make people lose their jobs, and make companies go out of business.

Under President Nixon, people died because of a war he had inherited. The Merkel-Macron Axis of Evil (as Merkel simply supported what Macron was doing) will be responsible for countless deaths in 2021.

One of the "red herrings" in this context is that they say they'll eventually get enough for every EU citizen to be vaccinated, and the current bottleneck is manufacturing capacity. Yes, and that's why the EU's decisions were so terrible. At a minimum, by placing a large order early on, rather than the same quantity later, or a smaller quantity first and a reorder later, you make sure your orders are high up in the queue. Also, if the EU had committed to 500 million doses when it signed the Pfizer/BNT deal (which had obviously been under negotiation for more than a couple of days, but it would always have been easy to just modify a couple of numbers in the contract), Pfizer/BNT would have had a basis for investing sooner and more aggressively in additional European manufacturing capacity.

The problem facing the EU now is that customers such as the U.S., UK, and Israel are ahead of them in the queue. It's not a strict sequence in the sense that the EU wouldn't be served before the others are, but the others get a lot more at this point.

Another red herring that doesn't get better by being repeated also fails to address the real issue: they like to point to logistical issues in various EU member states, and different regions of Germany. While it's plausible that there are now, at the start of the mass vaccination effort, places where the bottleneck is of an organizational nature, it's just a question of one or two months until those minor local and regional shortcomings have been addressed, and then a shortage of supply will be the only major problem. A lethal shortage, that is.

Apart from those points, a German Member of the European Parliament, Merkel minion Peter Liese, said on TV that the Trump Administration and other early adopters of the Pfizer/BNT vaccine accepted weaker indemnification clauses, which caused a delay in the EU. But it's simply a business reality that in a seller's market, it's not just that prices may go up but also that other deal terms may not be the ones a buyer prefers. But who would want to let people die and suffer, and companies go out of business, over an indemnification clause?

Similarly irrelevant is the fact that a group of four countries (Germany, France, Italy, and the Netherlands), who were originally working on a joint-purchasing initiative before they asked (under pressure from Merkel and von der Leyen) the EC to take over, primarily wanted to sign a deal with AstraZeneca in June. That was before the EU's deals with Sanofi and Pfizer/BNT, and there's no evidence that they were going to rely exclusively on Astra.

The excuses I just mentioned are merely diversionary tactics. But some of the apologists are either extremely stupid or liars: they argue that even by the summer, Sanofi was considered to be ahead. The truth is this: you can take any EU decision and look at when it was made, and then you look up the New York Times' Coronavirus Vaccine Tracker, which will show you that Pfizer/BNT and Moderna had actually been in the lead when the EU still prioritized other vendors.

The question is not whether VaxGate is the absolute low in the history of the European Union, and whether countless people will die as a result. The only question is whether they'll be able to somehow mitigate the damage. Yesterday Merkel expressed hopes that the supply situation would improve as a result of additional vaccines being approved. She particularly mentioned AstraZeneca (Dr. Fauci wonders whom to vaccinate with an inferior product), Johnson & Johnson (also a vector-based vaccine, like Astra's), and CureVac. Interestingly, CureVac's technological approach is mRNA, like Pfizer/BNT's and Moderna's, and the EU signed a huge deal with them. But they, too, fell behind at some point. It's possible that major commitments had already been made to CureVac in Europe, besides a direct investment by the German government, just to dissuade them from selling out to Trump. However, the best way to make the right purchasing decisions is to track the progress of the projects--and not to listen to Macron.

It's pretty clear now that the EU and the Merkel Administration will overstate the efficacy and understate the adverse affects of whatever vaccine the European Medicines Agency will approve. After not buying an extra 200 million doses (500 vs. 300) from Pfizer/BNT and another 300 million from Moderna (they've meanwhile bought some, but again the problem is where you are in the queue), even at a point when those companies were the clear leaders, they've proven to be irresponsible and even immoral. So who would care about a lower efficacy of a vaccine or some adverse effects? European citizens are treated terribly by their governments. They'll do anything to cover up for their mistake. Hell is freezing over as Merkel even called Vladimir Putin these days to discuss joint vaccine manufacturing options. Her legacy will be death, disease, and economic destruction. But to the extent they can, they'll mislead people, defend indefensible decisions, and resort to inferior products.

They'll keep saying that no one could know what vaccine would become available first. But when there's a free public resource like the New York Times Coronavirus Vaccine Tracker that provided all of the key facts one needed to know at any given point in time, it's clear the EU simply didn't decide based on the merits of those research projects.

They'll also keep accusing any critic of VaxGate as being a "nationalist" who didn't want a European approach. I, for my part, wouldn't care if the EU's joint-purchasing cartel--a monopsony--had benefited European citizens. Theoretically, it could have. Practically, Brussels means backroom deals and horse trades. And it means you have ruthless people like Macron abusing the system, even to the detriment of his own electorate in this case.

Throughout the year, the numbers, however, will continue to expose the impact of VaxGate. The vaccination gap between countries like the U.S., UK and Israel on the one hand, and the EU on the other hand, will widen for many months at least. The COVID-19 death count will speak a clear language (relative to population size, more people are presently dying from it in Germany than in the United States, which the mainstream media hardly ever mentions). By the end of 2021, it will be easy to see that Brussels backroom shenanigans will have killed many Europeans. And there'll be parliamentary investigations, with particularly a libertarian German party, the FDP, demanding special committees in both the German and the European Parliament.

I've been following COVID-related topics, including the vaccine situation, very closely. When you build a real-time strategy game about a virus during the coronavirus pandemic, you obviously pay more attention than otherwise.

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