'Hamlet without the prince': Can the Unitary Patent Regulation strut its stuff without Articles 6-8?

Abstract

Christopher Wadlow is Professor of Law, UEA Law School, University of East Anglia. He is also a member of the Editorial Board of JIPLP. The proposed EU Unitary Patent is the latest attempt to create a patent which would be effective across the whole European Union (excepting Spain and Italy), with infringement being adjudicated in a single Unified Patent Court having near pan-European jurisdiction. A draft Regulation was introduced in December 2011. In response to criticisms as to the excessive role of the Court of Justice of the European Union (CJEU) in the day to day operation of the Unified Patent Court, the EU Council has proposed to remove Articles 6-8 of the draft Regulation, dealing with the effects of the Unitary Patent in terms of direct and indirect infringement, and limitations on the rights conferred. This article discusses the background to the Unitary Patent Regulation and these specific proposals, and addresses the question of whether a Regulation without these articles would be valid and effective. Three mechanisms are tentatively proposed by which the Unitary Patent might be given effect, if it is to be adopted without Articles 6-8.