Abstract
Currently, the enforcement of a patent that is registered in several countries involves the risk of getting different and conflicting decisions from the national courts. In 2013, 25 European countries entered in an agreement that aims to homogenise the patent system by creating the European patent with unitary effect and a Unified Patent Court (UPC). This article focuses on the UPC, which aims to have a single court proceeding for cross-border patent conflicts. Does the UPC system represent an advantage compared to the current litigation system? The paper argues that it does and explores what it considers to be the two main advantages of a UPC over the current system of cross-border litigation of patents: the ability to drag several conflicts to a single procedure and the neutrality of the decision makers. These advantages are consequently compared to the characteristics of arbitration. Then, an explanation is provided with regards to how the UPC system is going to work in terms of jurisdiction, preliminary injunctions, the choice of law and enforcement of decisions, comparing those same procedural aspects to arbitration. The article finds that arbitration involves many of the same advantages (as compared to the UPC) and that the procedural issues studied in both means are, so too, similar. Therefore, arbitration represents a viable alternative to the UPC when it comes to reducing the risks in solving cross-border patent conflicts.
Highlights
Cross-Border Litigation of Patent Disputes and Their ProblemsThis paper was inspired by the conflict between Apple and Samsung, in which these international companies that have patents registered globally[1] for which they are business partners, entered into conflicts related to the same patents
Given the observation that current cross-border litigation of a single patent right between the same parties may reach different conclusions, this paper aims to analyse on one side, the future Unified Patent Court (UPC) which represents an effort from several countries in the European Union (EU) to have a harmonised patent system
This paper elaborates on the submission that the current litigation system of cross-border conflicts of a single patent between the same parties, in different jurisdictions, results in an abuse of the litigation system by the parties and results in different and sometimes contradictory decisions
Summary
This paper was inspired by the conflict between Apple and Samsung, in which these international companies that have patents registered globally[1] for which they are business partners, entered into conflicts related to the same patents. Given the observation that current cross-border litigation of a single patent right between the same parties may reach different conclusions, this paper aims to analyse on one side, the future Unified Patent Court (UPC) which represents an effort from several countries in the European Union (EU) to have a harmonised patent system. Part III submits that the UPC system’s main advantages are the fact that it will consist of a single procedure that will decide cross-border conflicts all over Europe, as well as the neutrality of the decision makers These two characteristics are considered face-to-face with characteristics of commercial arbitration that represent the same advantages. In Part IV, procedural aspects of the UPC vis-à-vis arbitration will be analysed These are considered of high relevance given that they answer the following issues of the cross-border conflicts of patents:. Information was gathered from a variety of experts and active contributors of the patent system in Europe, including patent lawyers,[12] patent chiefs of innovative companies,[13] patent judges, professors and representatives of the European Patent Office (EPO)
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