Abstract
Abstract This article retraces the history of patent harmonization in Europe and reviews the European Union “patent package” and its approval by the Grand Chamber of the Court of Justice of the European Union in the light of this history. The article draws on archived and hitherto unused confidential documents to retrace the key institutions and players in the origins and evolution of the European patent unification movement. The study reveals that the EU project was originally led by the Council of Europe and analyzes the reasons why the EU has struggled to develop a coherent model of integration to facilitate realization of the internal market ever since. The historical legacy suggests that a critical turning point was the creation of the European Patent Organization as the leading engine of patent policy in Europe, an autonomous organization which is not subject to judicial oversight by the EU court or meaningful political scrutiny by the European Union and its members. The article concludes with a case study illustrating how the latent difficulties over the relationship between different European institutions and the jurisdiction of European tribunals and courts are manifested today in the unitary patent and the unified patent court.
Highlights
The international patent system is undergoing a profound transformation towards ever-greater global integration of institutions and harmonization of standards.1 The movement for unification of the European patent system is part of this wider global trend, but the unification goal has proved difficult to realize in Europe notwithstanding persistent efforts dating back to the end of WWII
The historical legacy suggests that a critical turning point was the creation of the European Patent Organization as the leading engine of patent policy in Europe, an autonomous organization which is not subject to judicial oversight by the EU court or meaningful political scrutiny by the European Union and its members
This paper has argued that the latest EU initiative to effect unification of the European patent system is the outcome of polycentric complex forces to build up a common industrial policy in Europe encompassing States with diverse socioeconomic interests and the EU’s interaction with external autonomous international organizations
Summary
The international patent system is undergoing a profound transformation towards ever-greater global integration of institutions and harmonization of standards. The movement for unification of the European patent system is part of this wider global trend, but the unification goal has proved difficult to realize in Europe notwithstanding persistent efforts dating back to the end of WWII. In line with recent historiographies of the synergies and rivalries between international organizations and the European community, the paper reveals three phases in the evolution of norms and institutions in the unification movement in Europe. The EC’s initiative is frustrated and results instead in partial harmonization with the adoption of the European Patent Convention in 1973 and the creation of the European Patent Organization.. The EC’s initiative is frustrated and results instead in partial harmonization with the adoption of the European Patent Convention in 1973 and the creation of the European Patent Organization.3 This opens a third phase and problematic for the European community which is having to integrate a pivotal external institution into a unified legal architecture to serve the community’s goals. The spectrum of alternative proposals ranges from abolition of national patent offices and jurisdiction of national courts to dismantlement of the EPC and full integration of the EPO into the European Union: Di Cataldo (2014); Van Pottelsberghe (2009)
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