Google approved official Android app of anti-lockdown pressure group promoting breach of Germany's COVID prevention rules

About a year ago, the two major app stores decided to bar tens of millions of app developers from publishing COVID-related apps, no matter how useful those might be, unless they enter into public-private partnerships or co-publish their apps with certain types of entities. Both Apple and Google claimed that this was done in the interest of public safety.

A couple of weeks ago I announced my own app development company's antitrust complaints in multiple jurisdictions over those rules and their arbitrary application. While apps that could make (or early on could have made) a positive contribution to the fight against SARS-CoV-2 get rejected (which is why the team that developed an app named Coronavirus Reporter is suing Apple in the District of New Hampshire), apps that let players act as bioterrorists (telling them to "infect the world") or apps and books promoting bogus medicine (Homeopathy for Epidemics) are allowed. Better rules are badly needed.

Today I learned that Google has reached a new level of self-contradiction concerning COVID apps. On the Google Play Store one can download the "official" app of #WirMachenAuf, a group of German small business owners promoting and coordinating the flagrant violation of national and regional coronavirus prevention rules (click on the image to enlarge; this post continues below the screenshot):

Whoever reviewed this app on Google's side could simply have googled what WirMachenAuf is all about (to provide just two of countless articles indexed by Google's search engine: BusinessInsider Germany, state-owned TV news program). It's a group of small business owners trying to mobilize their colleagues to reopen restaurants and stores in violation of governmental coronavirus prevention measures.

So far, that initiative doesn't have much traction. Only a few dozen businesses participated last month. But its lack of success doesn't make that campaign acceptable or lawful, and the longer the current lockdown stays in force (for certain types of businesses), the greater the risk that more business owners join such a movement. Also, the German #WirMachenAuf initiative has spawned similar ones in other European countries, and it appears that some cafés in Italy recently opened in flagrant violation of lockdown rules.

The app doesn't explicitly mention COVID or corona(virus), but the positions and objectives of that initiative are known and easily researched. There's a screen on which the app explains what it's all about, referring to governmental measures taken since 2020 and explicitly declaring the intent not to comply with them anymore (click on the image to enlarge; this post continues below the screenshot):

I can't help but quote Google's Requirements for coronavirus disease 2019 (COVID-19) apps:

"Google takes this responsibility very seriously, and in the interest of public safety, information integrity and privacy, only specific COVID-19 apps that meet the requirements below will be allowed on the Google Play Store."

There you have it.

In August Epic Games CEO Tim Sweeney criticized (on Twitter) "the broken state of mobile platforms in 2020." Whether one fully agrees with him or not, Google's approval of the "official" app of a group inducing small business owners to break the law and open in the middle of a lockdown does show that there are serious issues--which must be addressed, one way or the other.

Google's use of its monopoly power in the COVID context is also being challenged in court. On January 20, 2021, the Munich I Regional Court issued a press release on a preliminary injunction hearing held by the court's 37th Civil Chamber (patent cases are heard by the 7th and 21th Civil Chambers, just to avoid any confusion here) in a case in which a WebMD-like website named NetDoktor.de (recently acquired by a large European publishing group named Hubert Burda Media) alleges an antitrust violation by Google's prominent display of a government-owned health information website (gesund.bund.de) when users search for certain COVID-related terms, thereby disadvantaging private-sector health portals like NetDoktor.

The problem on Android is even worse, as Google just doesn't allow anyone except governmental and certain government-approved entities to use COVID-related keywords anywhere in their metadata (as opposed to merely giving preferential treatment to some apps). Still, I can relate to NetDoktor's concerns. I don't know what the lower Munich court's inclination is, but no matter what the outcome will be, this case is sure to be appealed by the losing party to the Munich Higher Regional Court--and not only will there be a final decision on the preliminary injunction request but also a main proceeding and, therefore, a full trial.

The Burda publishing group raises a combination of antitrust and freedom-of-press concerns, such as in this opinion piece, according to which lawyers for the federal minister of health told the court that granting the injunction would undermine the minister's authority as the federal government's public face in the fight against COVID (which is ridiculous for a variety of reasons). One of the Burda group's C-level execs, Philipp Welte, gave a podcast interview in which he explained that for websites like NetDoktor "Google['s search engine] is the market." I understand that the decision, which was originally scheduled for last Friday, has been pushed back to Wednesday (February 10, 2021).

As I already explained last month, I don't have issues with Apple and Google at this point apart from their COVID app rules (and with Google I've disagreed on API copyrights for more than ten years). I hope the problem can be solved. With respect to Android apps relating to COVID, Google appears to be pretty specific about what YouTubers are not allowed to say (COVID-19 Medical Misinformation Policy). Both major app stores should improve their COVID app rules, and they should apply them reasonably and consistently, in which case Google would never again approve apps seeking to dissuade small business owners from complying with regional lockdowns.

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Conservative politicians shouldn't join Greens and communists in calls for compulsory licensing of COVID/mRNA vaccine patents

This post is a departure from my blog's industry focus that I wouldn't have contemplated if not for the highly unusual circumstances we're facing in the COVID-19 pandemic. The scientific aspects of pharmaceutical patents are above my head, but that also applies to the heads of those politicians proposing compulsory licensing of such patents in the current situation.

I just became aware of a disconcerting statement by the chairman of the center-right European People's Party (EPP) group in the European Parliament, Manfred Weber MEP (Christian Social Union, CSU), quoted in a German newspaper article (my translation):

"If need be, admitted vaccines must also be made by others on the basis of compulsory licensing."

This is the same Manfred Weber who lent unconditional support to the EPP's Axel Voss MEP with respect to upload filters (EU Copyright Reform). In other words, he wants IP overenforcement against kids who upload videos from a private party to YouTube, with some commercial music playing in the background, but he wants to deprive the companies who made a miracle happen--the availability of multiple COVID-19 vaccines after such a short time--of their rights.

His party, the CSU, is the regional sister party (comparable to the Minnesota Democratic-Farmer-Labor Party vs. the Democratic Party) of Chancellor Angela Merkel and European Commission President Ursula von der Leyen's party, the Christian Democratic Union (CDU). It's unlikely that he would toss out such an idea if it hadn't at least been floating around in those circles.

The EU is obviously in deep-shit trouble. In yesterday's New York Times there was an article entitled Slow Pace of Vaccinations Pushes Europe Toward Second Economic Slump. The numbers speak a clear language: as of the start of February, Israel had administered at least one dose of a COVID-19 vaccine to almost 60% of its population, the United Arab Emirates to approximately 35%, the UK to approximately 15%, the U.S. to approximately 10%, and the EU only to about 2%-3%. As I explained early last month, the EU's purchasing decisions were wrong at any given point in time just based on then-available information (New York Times Coronavirus Vaccine Tracker)--and liability issues do not serve as an excuse, as it's simply a reality in a seller's market that not only prices but also other terms are impacted by the demand-supply discrepancy. And money could have solved the problem at the right time by enabling certain companies to invest in European manufacturing capacities early on--just what ex-president Trump achieved with his Operation Warp Speed program.

German and other EU politicians shouldn't make themselves ridiculous by sometimes arguing in the same interview that the U.S. can outvaccinate the EU because it's such a large country, and Israel does so because it's a small country. Some politicians sound like those communist leaders did in the late 1980s before the fall of the Iron Curtain.

The problem is not going to get solved anytime soon, though I was surprised by the good news regarding the Russian Sputnik V vaccine, which appears to beat all other adenovirus vector-based COVID vaccines by a wide margin by using a different vector for the second (booster) jab (and both vectors appear to be unharmful human adenovirus strains)--the EU may end up importing that one. Meanwhile, the virus keeps mutating at a pace that makes it hard to follow. Yesterday, for instance, the BBC reported that the UK just found "more coronavirus cases with 'concerning' mutations."

A crisis is a terrible thing to waste. The EU should learn its lesson and reform itself. Brexit has its first success story (outvaccinating the EU by a factor of 5), and the EU will make things only worse if it doesn't think things through. The Daily Mail was never the EU's best friend, but in this article the British newspaper quotes media from all over Europe, including some very EU-friendly ones, who concluded they can't defend the indefensible anymore with respect to the EU's temporary intentions to put border controls in place between the Republic of Ireland and Northern Ireland in order to enforce vaccine export restrictions (which are, by the way, the epitome of "vaccine nationalism" as opposed to people being all for a coordinated EU effort, but criticizing what went wrong).

Even to only toss out the idea of compulsory licensing in this particular context is an insanity.

In the tech sector, I'm against injunctive relief except maybe under the most egregious of circumstances. Just yesterday I stressed again that patent remedies must be proportionate. And I'm not ruling out at all that maybe, further down the road, some general mRNA-related patents might prove overbroad--and compulsory licensing might be needed on antitrust grounds, should there be a clear and present danger of only one or two companies ultimately being able to make that new generation of vaccines (and potentially other types of mRNA-based medications).

But in the current situation, there simply isn't an economic case for compulsory licensing of COVID-19 vaccine patents. (To be clear, patent remedies are only available after publication of the related applications, and COVID-19 is too new for anything to have been published yet, but there are some general mRNA-related patents and patent applications that BioNTech might be able to enforce already against anyone plagiarizing their COVID-19 vaccines.)

The cost of lockdowns and similar restrictions is so high that there's enough money to be made not only for the companies that invented the vaccines but also by those who merely manufacture them. The recent deal between Pfizer partner BioNTech and Sanofi (which invested in BioNTech two years ago) shows that solutions can be worked out at the negotiating table. It's not just about immediate revenue opportunities: every contribution to what may help to solve the COVID-19 problem generates political goodwill and nice publicity.

What governments should do is incentivize such partnerships by making offers that enable both the inventor and the manufacturer to be generously rewarded. There's this saying that you sometimes achieve more with a gun and a smile than with a smile alone. In this case, however, the solution is money, not governmental heavyhandedness like in a plan-based Soviet-style economy.

I have to stress again that what I just wrote was only about COVID-19 vaccines. I do very much believe in the compulsory licensing of standard-essential patents (SEPs), as most of my readers know. But there's a difference between a couple or a handful of patents reading on a COVID-19 vaccine, with enormous risks taken, and the hundreds of thousands of patents one could theoretically assert against a smartphone maker or automotive company--and no single one of which patents truly protects a major investment in research and development.

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Filed complaints with competition authorities about Apple's and Google's COVID app rules

Reuters just reported on my antitrust complaints to competition authorities in multiple jurisdictions, challenging the basis on which they don't allow tens of millions of app developers to publish COVID-related apps on their stores, no matter how legitimate those apps may be.

In alphabetical order, these are the jurisdictions:

• Australia: Australian Competition and Consumer Commission

• European Union: European Commission, Directorate-General for Competition (DG COMP)

• Germany: Bundeskartellamt (Federal Cartel Office)

• The Netherlands: Autoriteit Consument & Markt (Authority for Consumers & Markets)

• United Kingdom: Competition & Markets Authority

• United States: Department of Justice

On Monday I will also file with the Competition Commission of India.

What these jurisdictions have in common is that they've all been particularly affected by COVID-19, and these competition authorities either have ongoing investigations or pending complaints or (in the case of the Federal Cartel Office of Germany) have expressed an interest in app platform antitrust issues.

For me it was quite a difficult decision to do this. I'd rather just have continued to watch cases like Epic Games v. Apple, but after much thought I concluded that the issue I have with Apple and Google in this context is part of a broader problem. When I made this decision, I had no idea that a U.S. antitrust lawsuit over Apple's COVID app rules--Coronavirus Reporter v. Apple--was being prepared. I learned about it only a couple of days ago, and commented on it today. But I figured that there'd be other legitimate COVID-related apps that must have been rejected only because they were not submitted by governmental entities or healthcare providers.

What my company had to do to our Corona Control Game in order to comply with Apple's and Google's rules is best explained with an analogy:

Imagine what it would have meant if the makers of the Titanic film had had to deal with only two movie theater operators, each of which controlled a distinct part of the world. Each of these cinema operators would have stated its rules slightly differently, but the net effect would have been the same: do the Titanic film without the Titanic ship, or else.

The distribution channel would have given no reason for that, or maybe it would have told the movie company that the Titanic was such a tragedy that it's offensive to create an entertainment product involving it.

The message would have been: you can make a movie about a sinking luxury ship. So if you name it "Sinking Ship", "Luxury Ship", or give it a fantasy name like "Dobogandalupa", that solves the problem with the title. But that's not enough: the ship must not look like the Titanic, it must not bear the name "Titanic", any tickets, posters or whatever must not contain that name, and, lest we forget, the actresses and actors must never say "Titanic".

Technically, it would be pretty much the same film if you analyze it purely quantitatively. You could have the same storyline and the same cast, but... it would be the Titanic film without the Titanic ship. It becomes a different product. A creative product like a game is not just a question of how many lines of your program code you can reuse (that percentage was obviously pretty close to 100%).

There were some opportunists who simply rebranded and rethemed sidescrolling jump-and-run games or Angry-Birds-style games to get attention for a "COVID" game. But those games weren't legitimate COVID games. Their gameplay had nothing to do with the problem of viral contagion, much less with disease control measures.

Despite the restrictions, some reviews noted the game's ability to make a positive contribution to the fight against COVID-19. Some examples:

• Viral Days is a brand new strategy game that supports the fight against COVID-19 (Pocket Gamer)

• Viral Days is a must play in these days of COVID-19 (IZTech)

• "[I]t’s a really great way to spend some time that’s going to keep you on your toes and teach you something as well." (AppAdvice)

• Viral Days is a Mobile Game That Shows us the Best Way to Handle Pandemics: "an entertaining mix of strategy and management with a message that we all should be heeding right now" (Gamezebo)

• Viral Days, el videojuego para móvil para crear conciencia de la infección de la Covid (El Español)

• "Estamos ante el primer juego para móviles que demuestra el beneficio de usar mascarillas, el distanciamiento social y la cuarentena como medios para combatir las infecciones virales." (APPerlas)

• "Improves people's awareness ... a very meaningful gameplay experience ... fits very well with real life"
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• "Melhores jogos para Android e iOS da semana [24/12/2020]" (tudocelular.com)

• Best iOS app released the week before (iPhoned.nl)

That's nice, but it still doesn't solve the problem. People who are looking for a COVID-themed game should be able to find it, because it's a legitimate game about viral infections (this post continues below the video):

We also created a special edition, Viral Leaders Trump & Johnson, which Google approved, but Apple rejected. You can find it here (Android app, or as a browser game on Mac and Windows computers).

As the Reuters article notes, "Google and Apple rules say COVID-19 related apps must be government approved in order to avoid promoting conflicting or incorrect health advice" (and Apple just banned all COVID-related games, no matter how legitimate).

I have only this one issue with those companies (and with Google I disagree on API copyrights, but that's nothing new). I tend to agree with them on patent policy, especially when it comes to standard-essential patents. But their COVID app rules, which adversely affected my creative product and, as the Coronavirus Reporter v. Apple case shows, caused harm to other kinds of apps, are unreasonably restrictive--and the stated reason (ensuring that users aren't misinformed) is totally inconsistent with the fact that both Apple and Google distribute products that definitely misinform users in connection with COVID-19 and its symptoms:

On the App Store and on the Google Play Store, you can find homeopathy apps. Give me a break. That's a scam, and it's been debunked over and over. The Department of Justice--one of the agencies I'm complaining to--has even taken legal action against someone who recommended homeopathic medications in connection with COVID-19 ("U.S. Attorney’s Office Files Enforcement Action Against Chiropractor Promoting Fake COVID-19 Treatment").

If Apple and Google are all that concerned about people being misinformed during this pandemic, the best starting point is not to disallow an app like Coronavirus Reporter, which merely lets users communicate, or an educational game that was designed from ground up to encourage people--especially, but not only younger audiences--to comply with governmental disease control efforts. Instead, Apple and Google should purge their app stores of homeopathy apps.

It's not just that they're distributing homeopathy apps. It gets a lot worse. They even distribute books that tell people the best way to confront a pandemic is to rely on homeopathy. Here's the Apple Books Preview of Homeopathy for Epidemics, and here's the Google Play Store page. On the Google Play Store I even found this book: Ancient Bible And Modern Natural Secrets To Fight Virus Epidemics. Yeah, that's probably the best way to keep iOS and Android users healthy. The description of that book specifically mentions homeopathy. So some nutheads and some credulous people who believe in homeopathy will get infected and go on to infect others. And many of them will oppose vaccination. That's just what society needs these days.

I also don't understand why Apple allows a Mac app, Amphetamine, to be named after an addictive substance. In that case, the name simply isn't necessary: some may find it funny, but in reality it promotes bad stuff and there would be non-objectionable, even more descriptive alternatives.

While my game demonstrates the problem of viral infections and encourages good behavior, one of the most popular apps on both those stores has the following objective: "Infect the world." That other title is about creating a deadly pathogen and extinguishing humanity despite people's disease control efforts. If depraved and/or deranged people play that in the midst of a pandemic, such a game might even induce them to spread the coronavirus with full intent.

On this blog I'm not going to cover my own complaints more extensively than I would if others had brought the same complaints. Actually, there are things I won't say when I'm a complainant but do say when I just watch cases. I did, however, wish to shed some light here on why I did what I did.

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Coronavirus Reporter complaint against Apple raises serious antitrust issues: Apple's COVID app rule should be declared illegal (Google's isn't better)

After almost six months of commenting on App Store antitrust cases, above all Epic Games v. Apple, the time has come for me to state clearly that, just like Epic, I am convinced that Apple and Google have monopoly power in their respective app distribution markets. And while the focus varies from app maker to app maker, I, too, have experienced and continue to experience abusive conduct by both.

So far, I had expressed firm opinions solely on aspects of Epic's case against Apple that related to access to emergency relief (temporary restraining order, preliminary injunction). Especially after I heard Judge Yvonne Gonzalez Rogers (Northern District of California) tell counsel for Epic and Apple that the key issues in the case wouldn't be decided at that early stage, I wanted to take my time to understand. Now, I'm not saying I necessarily agree with Epic on each and every aspect of its cases (though I may when the cases go to trial), and I'm particularly not taking a position on the 30% cut yet. But there's one thing I can say at this stage: I definitely concur with Epic's definition of app distribution markets and its assertion that Apple and Google possess monopoly power in those markets.

The clearest case of abuse of that monopoly power to have come to light so far is the Coronavirus Reporter v. Apple litigation in the District of New Hampshire (this post continues below the document):

21-01-19 Coronavirus Report... by Florian Mueller

The Coronavirus Reporter app, if Apple had not withheld it from the iOS user base, would have served as a communication s tool. People could have reported their COVID-19 symptoms along with their location, their health status, their test results, and whether they were in quarantine. For screenshots etc. let me refer you to this article by The Register's Thomas Claburn.

At a time when there was no corona app on the App Store, the Coronavirus Reporter development team submitted its app, but Apple rejected it because it would accept COVID applications only "from recognized institutions such as government, hospital, insurance company, NGO, or a university." Shortly thereafter, Apple published an updated version of that clarification of how it intended to interpret its review guidelines, hypocritically entitled Ensuring the Credibility of Health & Safety Information. Later today I will publish evidence that Apple actually does the very opposite in connection with a list of products, and I'm not talking about user-generated content, which Apple obviously couldn't control.

The Apple statement I just linked to is outrageous. The first paragraph is simply a marketing statement and, as I just said, Apple's own decisions belie it.

The second paragraph says Apple is "evaluating apps critically"--but if that's what Apple truly meant, they'd have to review COVID-related submissions on an app-by-app basis, and not just rule out broad categories of submissions ("Entertainment or game apps with COVID-19 as their theme will not be allowed.") without sifting the wheat from the chaff, and they wouldn't reject COVID-related apps from tens of millions of developers when those apps, like Coronavirus Reporter, could be developed by aný developer. In Coronavirus Reporter's case, what makes it even more absurd is that they actually claim to have NASA's former Chief Physician (during the Space Race) on their team. But that shouldn't even be necessary for an app that is all about the information exchange between users.

The complaint is right that Apple's COVID contact-tracing initiative, on which they ultimately partnered with Google, failed to deliver significant benefits to society. Some of the world's most reputable media have discussed the failure of contact-tracing apps (except, of course, in a few countries such as China and South Korea, where they did have an effect but where their use was mandated by governments). Here's a headline from a November 2020 TIME magazine article:

"Contact Tracing Apps Were Big Tech's Best Idea for Fighting COVID-19. Why Haven't They Helped?"

Coronavirus Reporter is suing Apple for damages and seeking a permanent injunction that would "restraining Defendant’s App Store from restricting reasonable applications from access to the global internet." I, too, believe Apple is liable for damages because its position on COVID apps constitutes monopoly abuse; I agree with Coronavirus Reporter that "the Apple App Store violates antitrust law by disallowing third-party applications using arbitrary and capricious standards"; and I do believe Apple's conduct should be enjoined, though I'd have phrased the prayer for injunctive relief differently (I don't see a point in that reference to "the global internet" when it's about the ability to have access to the iOS user base; and I'd have to think about whether the requested injunction would have to be a bit more specific).

The complaint notes that other app developers have received similar treatment from Apple. I'm one of them, and I'm sure there are many others. Apparently Coronavirus Reporter's lawyer would like to put together a class action, for which he needs other plaintiffs to join. If the prayer for injunctive relief was phrased differently, and if the complaint could be amended (though it already does make a number of very good points), I would give serious consideration to joining. If I don't join, I'll evaluate the possibility of filing an amicus curiae brief in support of plaintiff at some point.

My next two posts will also discuss App Store issues. I'm now officially a member of the #AppRising movement. That doesn't mean that I agree with every single app developer on everything; in fact, that would even be impossible, given that it's a diverse group of people and entities. But I, too, have concluded that the most noble cause in the history of the tech industry is to fight against Apple's and Google's abuse of their app distribution monopolies. (Google's position on COVID-related apps isn't really better than Apple's.)

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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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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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Ten patent and antitrust predictions for 2021

Happy New Year!

Let me start with what I believe will be some of the hottest items on the patent and antitrust agenda (with a focus on the information and communications technology industry, of course) this year. There's always a risk of making predictions that don't play out, but I can live with that. I've had a very high hit rate--but obviously sub-100%--with respect to judicial and regulatory decisions. Unlike practitioners, I don't incur the risk of clients losing faith in me. Instead, I believe many of my readers actually prefer me to just share my thoughts and speak my mind.

1. Mobile app platforms to be the clear #1 antitrust topic

   I'm convinced that this is bigger than the "smartphone patent wars" were in the first half of the last decade, and I'd definitely say so even if I had not released an app shortly before Christmas, which, by the way, has been lauded for its quality as well as for making a positive contribution to the fight against COVID-19. Some examples:

   • Viral Days is a brand new strategy game that supports the fight against COVID-19 (Pocket Gamer)

   • Viral Days is a must play in these days of COVID-19 (IZTech)

   • "[I]t’s a really great way to spend some time that’s going to keep you on your toes and teach you something as well." (AppAdvice)

   • Viral Days is a Mobile Game That Shows us the Best Way to Handle Pandemics: "an entertaining mix of strategy and management with a message that we all should be heeding right now" (Gamezebo)

   • Viral Days, el videojuego para móvil para crear conciencia de la infección de la Covid (El Español)

   • "Estamos ante el primer juego para móviles que demuestra el beneficio de usar mascarillas, el distanciamiento social y la cuarentena como medios para combatir las infecciones virales." (APPerlas)

   • "Improves people's awareness ... a very meaningful gameplay experience ... fits very well with real life"
     (逗游网 doyo.cn)

   • "Melhores jogos para Android e iOS da semana [24/12/2020]" (tudocelular.com)

   • Best iOS app released the week before (iPhoned.nl)

   No, it's not just that I'm seeing the world through an app developer's lens. Throughout this year, there's going to be news from numerous countries on multiple continents concerning app store antitrust matters. There'll be a spectacular Epic Games v. Apple trial in Oakland. From what I hear, and without stating my own position on the legal framework yet, I predict that the European Commission's Directorate-General for Competition (DG COMP) is going to hand down a Statement of Objections (SO) in the investigation of Spotify's October 2019 complaint (prior to which Spotify was already informally lobbying the EC heavily). The Coalition for App Fairness will certainly continue to grow. There will be cases in which apps are rejected, or will be removed from an app store despite originally having been approved, such as Vybe Together. But there's also a potential for further improvements in favor of developers--and room for improvement there clearly is, not only on iOS but also on Android.

   While some organizations primarily rely on regulatory intervention and judicial decisions, others will look for "workarounds" as we can see in the case of game streaming services, where Microsoft decided to bring its xCloud--and Google its Google Stadia service--to iOS devices on the basis of HTML5 web apps.

2. It's a safe assumption that things can't get worse with respect to the USPTO and patent-related antitrust enforcement under the incoming Biden Administration than they were under the outgoing Trump Administration.

   With Andrei Iancu, a litigator whose firm does most of its patent assertion business with trolls, and Makan "Macomm" Delrahim, a Qualcomm lobbyist, #45 put not only fox in charge of the hen house, but two. #46 can't possibly make worse choices in that regard, even if he tried.

3. But, to my dismay, I expect very negative developments in the 117th United States Congress. With Senators Thom Thillis (R-N.C.) and Chris Coons (D-Del.) having been reelected, their unholy alliance is set to continue for many more years. Presumably they're going to launch a massive legislative assault on Alice (§ 101) with lots of support on both sides of the aisle. Silicon Valley largely supports the Alice case law, but will the tech industry thwart that foreseeable attempt to overrule the Supreme Court by means of new legislation? What the United States needs in 2021 is what the EU had about 20 years ago: an anti-software-patent movement (or at least an anti-abstract-software-patent movement). I didn't found that one; I joined it in 2004 and launched one prominent campaign within that movement. There still would be a potential for mobilizing the developer community at large, and that would be a way to contribute to efforts to dissuade Capitol Hill lawmakers from overturning Alice. If it comes down to traditional, run-of-the-mill lobbying, the anti-Alice movement will win handily.

4. What I believe can be avoided (but even that is not sure) is that Congress, in one fell swoop, also does away with the patent injunction requirements under eBay v. MercExchange. Sen. Thillis appears to have become a little more balanced in that regard, though he has yet to figure out how essential Alice is to protect America's true high-tech innovators (as opposed to trolls).

5. COVID-19 is still going to have a major impact on patent litigation. Expect to see delays in reasonable districts--but also irresponsible decisions by out-of-control superspreader judges on both sides of the Atlantic.

   In one major hotspot region, Germany, there are presently more people dying from and with COVID-19 every day, relative to population size, than in the United States, and it appears highly unlikely--barring an unforeseeable improvement of the situation, such as by a sudden burst of vaccine production capacity somewhere--that herd immunity will be achieved in Germany or any other large EU member state in 2021.

   While outgoing Chancellor Angela Merkel took far more reasonable positions than various other politicians when it came to imposing undesirable but inevitable restrictions on citizens, she's always been a total disaster with respect to migration policy (even in 2020, Germany condoned that more than 100,000 illegal immigrants entered the country, with many COVID-19 outbreaks in asylum shelters and other diseases being imported) and she's always put Europe first, her own country not even second.

   Even though the first highly effective COVID-19 vaccine was invented in Germany (by legal immigrants of the most admirable and desirable kind), the German government decided to source any vaccine only through the EU. That could have worked if not for French president Muckron's protectionism. Pfizer/BioNTech offered the EU 500 million doses, and Moderna (which uses the same type of technique, mRNA) another 300 million. With 800 million doses, the EU could have vaccinated pretty much every citizen (without even needing AstraZeneca's hands-down inferior and problematic alternative)--at a minimum, it would have achieved herd immunity, and probably by the summer, if not sooner.

   But the French government, whose influence over EU politics has never been more damaging than under its current president, would rather let many people die than acknowledge French pharmaceutical giant Sanofi-Aventis' failure to innovate. Sanofi's vaccine isn't ready, and even if and when it will be, it won't be a match for what Pfizer/BioNTech and Moderna have to offer. The French government wanted to avoid two things:

   • They didn't want Sanofi-Aventis to lose market share, as a result of its failure to provide a competitive COVID-19 vaccine, to German and American companies.

   • They also wanted to avoid a situation in which a German company (founded and led by Turkish immigrants) would have "saved" Europe from COVID-19.

   So Muckron, probably through French EU fake news commissioner Thierry Breton, practically vetoed any commitment to other companies that would have exceeded the quantities the EU agreed to buy from Sanofi-Aventis. Unfortunately, the totally unethical French government didn't have to fear any objection from its equally irresponsible and ruthless German counterparts in Berlin and Brussels who don't care about and for the lives of ordinary citizens nearly as much as for their "EU über alles" ideology.

   As a result, the German government's current vaccination plan envisions that the majority of the population (45 million people categorized as those having a "low risk") would not get vaccinated before December 2021 at the earliest.

   No, this is not a conspiracy theory. It was reported by Germany's nost influential political newsweekly, Der Spiegel, which is a liberal magazine and couldn't possibly be more EU-friendly--and a columnist for its center-right competitor, Focus, picked it up and completely agreed. His conclusion: instead of "Stronger together," the EU's slogan should be "Dying together, Brussels kills people." That is a similar way to put it as what Romanian MEP Cristian Terhes told the press: "European Unity is not a strength when it is slow, cumbersome and bureaucratic; indeed it kills when it puts utopian ideologies over letting nation states protect their own citizens and best interests."

   Later today, the same Focus columnist published another piece in which he says this is Merkel's most devastating mistake in 15 years in office, and he's wondering why most of the mainstream media (with a few notable exceptions, though) remains silent about it. People are going to see the impact of this as Germany will have to impose lockdowns at a time when other countries, thanks to herd immunity, will be back to normal life more or less.

   The combination of Spiegel and Focus in Germany is comparable to MSNBC and FOX NEWS agreeing on something in U.S. politics. Also, Dr. Daniel Stelter, a German management consultant who had worldwide responsibility as a managing director at Boston Consulting Group, discussed this matter on Twitter.

   Professor Uğur Şahin, the CEO of BioNTech, told German newspaper Die Welt that the EU behaved very differently from countries that bought vaccines directly. It appeared the Commission couldn't really act without approval from some member states, and the EU gave the impression it thought there were alternatives. This is consistent with the French protectionism story: obviously the Commission didn't invite BioNTech to its internal discussions with France (if anybody was privy to them, that would have been Sanofi, of course--given that France's vision of "fairness" is that its own companies, even when they fail to innovate, must receive preferential treatment). All that BioNTech saw that how the EC was dealing with them, and it's clear now that the Commission failed the bloc's citizens. It failed so miserably that there's probably never been a stronger case for leaving the EU: the UK is already outvaccinating it. While this Daily Express article reflects strong EU skepticism, it also talks about some of what went wrong and why.

   Those delays in vaccination will have an impact on German patent trials, unless judges decide to go ahead anyway, as some of them are prepared to do.

6. German patent injunction reform is going nowhere. Some kind of bill will be passed, and the pro-reform movement will engage in some predictable spin-doctoring, but the mess is going to be just the same, except that legal fees will be higher than before. I'd love to be proven to have been wrong, and to see something good come out of that process, but the pro-reform movement consists of too many born losers.

7. The Unified Patent Court (UPC) will be like the German patent judiciary on steroids. It's going to start its operation soon. There was no political resistance, so it's just going to happen, and possibly the first UPC hearings will already take place this year.

8. We'll hear a lot about antisuit, anti-antisuit, and anti-anti-antisuit injunctions this year. In fact, 2020 ended with the outbreak of a major anti-anti-antisuit venue fight between Ericsson and Samsung.

9. Finally, component-level licensing of standard-essential patents (SEPs): Nokia won't be able to prevent the referral of a set of key legal questions to the Court of Justice of the EU. The more interesting question is what the other major German patent infringement venues will do: will they stay certain cases pending the CJEU proceeding? Or will they just look for ways to duck the question, simply by finding against plaintiffs on other grounds? The lower courts won't be helpful, but the appeals courts will overrule them in some cases. After the German referral to the CJEU, courts in other EU member states may also stay SEP cases involving component-level licensing-based defenses.

10. The Avanci SEP pool firm is not going to change its "end-product-only" policy. As a result, it's not going to do much business in 2021.

I'll look at these predictions again in a year from now.

Finally, I'd also like to highlight a macroeonomic fact: relative to the size of its economy, no other major economic area in the world has taken on nearly as much debt during the COVID-19 crisis as the eurozone. And I believe they'll have to do even more in 2021, due to the abysmal failure to procure enough doses of available and effective vaccines that I explained further above. The eurozone's perpetual lie is that they need to borrow their way out of debt in order to stimulate "growth." They've been saying so since the start of the Greek sovereign debt crisis. It just won't happen because especially Southern Europe can't compete in the Digital Age--and even Germany faces challenges (with Tesla being the world's most valuable automotive company, far more important than the entire EU automotive sector), as do the Nordic countries (Ericsson and Nokia can't simply sell their cellular base stations on the merits--they depend on patent abuse and political protectionism).

Since 2008, the ECB's central bank money supply has increased from about 900 billion euros to roughly five times that amount, if not more, as renowned economist Hans-Werner Sinn explained on YouTube. One might wonder why this hasn't led to hyperinflation. It hasn't yet, but it inevitably will at some point. The eurozone has been the loser among major economies with respect to digitization, and it's now also the loser with respect to COVID-19. The consequences will be dramatic. But we won't see much of them in 2021 as the ECB will continue to simply buy up government debt. That so-called "Modern" Monetary Theory is actually a very old concept that already failed about a century ago.

The euro currency may still exist in 10 years or even in 20 years (though I strongly doubt the latter) from now, but Europe's economic future looks extremely bleak. COVID-19 has been an accelerator, a catalyst, and it has exposed some of the structural issues facing the EU and the economies and societies of many (especially its largest) Member States. The UK--which never joined the eurozone anyway, but at some point might have had to choose between leaving the EU or giving up the pound--is going to do far better outside the EU. It will take more than one or two years until people recognize that Brexit will have been the best decision for Britain's prosperity, though I absolutely understand all those British citizens, especially young professionals, whose personal opportunities would be greater, or at least more numerous and more diverse, had the UK remained in the EU.

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Viral Days: inspired by the COVID-19 pandemic, this real-time strategy game for Android and iOS demonstrates the propagation of a virus and, especially, the most effective ways to stop it

Nine months ago, to the day, I woke up after about four hours of sleep. With large parts of the world in lockdown, I started thinking about how a mobile game could make a useful contribution in the current situation and any future situation, as the SARS-CoV-2 pandemic is not the first and won't be the last of its kind.

I'll tell you in a moment what happened then, but fast foward from March 2020 to this weekend, and Viral Days (product website) is available for iOS on Apple's App Store, and for Android on the Google Play Store, [Update] the Huawei App Gallery, and the Samsung Galaxy Store [/Update]. Here's a gameplay video (this post continues below the video):

Back in March, some low-quality games from traditional genres, basically cheap knockoffs of titles like Angry Birds and Super Mario Bros., had been rethemed and rebranded as COVID-19 games. But they made no sense. You don't cure a disease by throwing toilet rolls at virus-like faces, or avoid getting infected by jumping over obstacles. What I wanted to come up with instead was a game that would really make a difference. A game that would

• demonstrate the problem of exponential propagation in a simplified, time-compressed form and

• promote several of the most effective ways to stop (or at least slow down) the spread of the virus.

After about an hour, I felt very good about my rough idea, and I luckily got another three or four hours of sleep. After waking up, I was (still) absolutely determined to turn this idea into reality. That same morning, before stores opened, I already had a call with Mario Heubach, whose company was doing contract development for my app development firm. We actually had been working together on another title--a highly interactive trivia game--since the summer of 2018 and were probably just a few months away from launching it. I was worried he'd declare me completely crazy to put a near-finished project on hold in order to start a new one. Let's face it: this is completely against conventional wisdom. But under the circumstances, what one would normally not even consider for a second was the right decision this year--we agreed on this much, and in early April, after some further conceptual work and research, development began. The Unity 3D engine was our obvious choice, and we also found valuable material on the Unity Asset Store.

We took our time to get it right--we really wanted to make a high-quality game--and finally submitted the app to Apple, Google, and Huawei yesterday. Apple and Google approved very quickly--they had previously taken a look at our beta versions. It's part of the history of this project that we initially had to deal with rejections, but I don't want to go into detail, at least now here and now. What matters is that the game is now available. And today we also submitted it to Samsung's Galaxy Store for review.

The initial release comes with 14 different languages.

Later this month we'll publish an HTML 5 (WebGL) game based on the same engine. I'm pretty sure that one will go absolutely viral, and when you see it, you'll see immediately why I think so. Stay tuned.

I'm aware of only one other game that "strategygamifies" the problem of a viral pandemic: Ndemic Creations' Plague Inc., which was launched in 2012 with what is now called its "main mode." That "main mode" has the objective of extinguishing humanity by means of a lethal virus. By stark contrast, my game's subtitle is "Heal - Protect - Prevent." Also, the virus in Viral Days isn't lethal. There's a difference like day and night between those two virus games not only in terms of the game objective but also the genre. Plague Inc. is a numbers-centric, abstract game where you see dots on a world map. Viral Days is about people you see--and try to take good care of. It's hands-on because players get to distribute masks, hospitalize or home-quarantine infected people, disperse crowds, and when you impose a lockdown in my game (available once you've reached level 18), you see people running home, just like you can see how infections are happening when an ill person and a healthy person spend too much time close to each other.

Viral Days highlights proximity with a frame that adjusts dynamically. I prototyped that one back in 2014, originally for a completely different purpose, and for a long time I had been looking for a way to put it to use in a game. In the early morning hours of March 19, 2020, I finally found it.

This game has the potential to reach a huge audience--and should have a positive effect on many (especially, but not only, young) people's attitude towards masks and social distancing. Apple disallows COVID-19-themed games, and Google has strict rules concerning metadata containing such keywords as COVID-19, corona(virus), and pandemic. But Viral Days is a generic virus game. In fact, what you see in the game would apply to the Spanish Flu of 1918 as well.

When I started blogging about those App Store antitrust cases in the summer, I said I was about to publish a game app myself. It took a few months longer than I thought then, but by now you know which one I meant. I'm so happy to have created a game that I'd definitely play even if I hadn't made it. And proud to have invented a new strategy game genre: real-time strategy without anything resembling military combat. It's viral real-time strategy.

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In-person patent trials are a no-go in the Western hemisphere for at least several more months--other than exceptional cases of competitive harm

The Western part of the world is in the situation in which it is these days--with renewed, hard lockdowns--because covidiots come in all shapes, forms, sizes, and colors. One of them will pay the price for his mendacity and irresponsibility in this context next month when he'll have to move out of a white building regardless of his achivements in several other areas, while some others wear black robes and regrettably can't be voted out no matter how much they'd deserve it.

The next few months--the coldest of the year--are the worst time ever to conduct in-person trials. Now, I fully understand that the judiciary can't just freeze everything for an extended period of time. There are matters, particularly criminals trials, habeas corpus etc., that can't wait. All that one can do in those cases is to impose a requirement to wear masks, to enforce a certain minimum distance, and to ensure sufficient ventilation.

I obviously wouldn't deny that there are civil lawsuits with an objective sense of urgency. There may be time-sensitive issues related to employment or tenancy relationships, for instance.

But patent cases that require swift adjudication are few and far between. Very few and very far, that is.

Practically, the standard for holding any in-person patent trial in the coming months should no less--and ideally even more--exacting than the one for a preliminary injunction: irreparable harm, inadequacy of monetary relief, balance of hardships, and public interest considerations.

If you had a two-horse race in a given market and one of the two key players willfully infringes on its rival's intellectual property in differentiating features that truly drive demand, then there may be a pressing need to reach--and enforce--a decision ASAP. But how often is that the case? Looking at the RPX Daily Litigation Alert, or at the lists of patent trials held in German courts, one can easily see that most patent cases are brought by non-competitors. That category of plaintiffs comprises patent assertoipn entities that never made a product; companies that haven't seriously built products in a very long time; and notorious patent abusers like Nokia and Ericsson who failed in certain markets but try to extract excessive royalties, partly by bringing their own cases and partly by feeding hordes of privateers.

There are differences between jurisdictions in how much leeway judges have under these circumstances. Federal judges in the U.S. can simply hold Zoom hearings. I get the impression that Judge Yvonne Gonzalez Rogers, who presides over a bunch of antitrust actions targeting Apple's App Store terms and policies in the Northern District of California, takes COVID-19 very seriously. A superspreader event in her courtroom is not going to happen. Obviously, some lawyers are more comfortable than others to deliver oral argument via a webcam. For instance, Gibson Dunn's Ted Boutrous, who represents Apple against Epic Games and some other plaintiffs, is a frequent TV interviewee, and you can see how comfortable he is in front of a camera. At a hearing this fall he said that "Epic can free Fortnite" (by complying with Apple's rules), and the way he made that point was like he was speaking to a nationwide audience on prime time TV.

While Germany generally has managed to respond more successfully to the coronavirus crisis than the U.S., the German patent litigation system is largely a disaster and a disgrace, and various patent judges and some patent litigators in that country are less classy in robes than their average U.S. counterparts would be in a swimsuit.

What I do appreciate, as I do talk to various German patent litigators from time to time, is that they much prefer to deliver oral argument in person. One of them told me that when a matter is really important to his client, he absolutely wants to be in the same room as the judges, he wants to see all of their mimics and gestures, and he wants them to look him in the eye when they state their views. Some of that isn't possible via Zoom, and some of it is compromised.

But does that preference mean it's responsible to risk superspreader events for totally non-urgent cases?

The trial judges in Germany claim that plaintiffs bring their cases in their jurisdiction because of their great understanding of patent cases and their efficient case management. In reality, cases get filed their because of the combination of a large market, near-automatic injunctions (which won't realistically change with the ongoing reform process that has already been derailed as far as I can see), and bifurcation (meaning you get leverage out of patents that shouldn't have been granted in the first place). And speed, but it's speed that comes at the expense of a proper administration of justice.

The decisions that German patent trial courts hand down are often fundamentally flawed. At times they border on the absurd. And in a few cases they're an absolute insult to human intelligence, sometimes forcing appeals courts to toss a lower court's decision in a way that would be humiliating to the judges below if only they cared (they do not). It's not that the responsible judges are dumb. They aren't nowhere near as competent as they think, and especially when it comes to technical matters I've heard things in those courtrooms that would make computer-savvy 12-year-olds ashamed. But the issue is mostly one of integrity, not intelligence.

For the sake of their careers--with posts on the future Unified Patent Court being far more lucrative and somewhat more prestigious--, some of those judges are willing to do any favor to plaintiffs for the sake of "forum selling." And a very few of them, which is not unique to Germany but particularly common there, would even let people die from COVID-19, or suffer the consequences of Long COVID, just so they can add a few more patent cases to their resumes.

The current period is an extremely critical one. There can be no more doubt by now that cold, dry air makes it easier for the virus to spread, and it leads people to spend more time inside buildings and on public transport vehicles. At the same time, there is hope, mostly because of the first approvals of vaccines, but there may also be more effective therapies soon.

There are caveats. Will the adverse effects of those vaccines prove too bad over time? Will the vaccines slow down the spread of the virus, or will they merely (which is any vaccine's primary purpose, though) protect the vaccinated, resulting in more asymptomatic (yet contagious) infections? Will the number of "anti-vaxxers" be so high that the problem can't be solved that way? Will the virus mutate (just today I read about a new SARS-CoV-2 variant that has been identified in the UK), possibly requiring modifications to any vaccines? There's no guarantee. But there are reasons to not only hope but also believe that the problem may be much less bad by next summer, and possibly marginalized in a year or so from today.

Every infection that gets avoided now is an infection that may effectively have been avoided forever.

Counsel, jurors and courtroom watchers should not be exposed to any unnecessary risks.

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