Abstract
In order to promote harmonisation in a more effective manner in the European patent system, it is argued that this should not solely be done through legislation, but through judicial dialogue and cooperation. Through this means of informal harmonisation, progress can be made case-by-case, rather than waiting for legislation to be agreed upon and entered into force. This is already happening to good effect, as displayed through a number of examples, including the most recent example of Actavis v. Eli Lilly [2017] UKSC 48 in the UK Supreme Court. It is proposed by this article that official lines of communication should be opened among all judiciaries and Boards in the European patent system to improve this practice. Judicial cooperation would also be useful to the Unified Patent Court, if it becomes operational. Opening official lines of communication would be an important step towards a further harmonised European patent system and would increase legal certainty in this area.
Highlights
There have been many attempts to introduce a unitary patent system in Europe, in order to promote harmonisation, yet none have been successful far
It is proposed by this article that official lines of communication should be opened among all judiciaries and Boards in the European patent system to improve this practice
Not include all European Union (EU) Member States, let alone all European countries; second, whether or not the United Kingdom (UK) remains in the proposed unitary patent system post-Brexit is questionable; and third, the new system would not replace any of the current systems
Summary
There have been many attempts to introduce a unitary patent system in Europe, in order to promote harmonisation, yet none have been successful far. This article investigates an alternative and proposes that the most effective means of promoting harmonisation throughout the entire European patent system is judicial dialogue and cooperation.. This paper argues that legislating in this area is first difficult to reach a compromise on, second, takes a long time to enter into force, and third, does not always have the intended outcome It will set out an alternative way forward by developing a novel argument for why there needs to be a shift in thinking about how to secure harmonisation in this context. It does so by examining in detail a means for harmonisation without legislation, which maintains room for national diversity – that is, informal, yet effective, harmonisation by encouraging judicial dialogue and cooperation. The Unified Patent Court (UPC) can participate in judicial dialogue and cooperation with the currently existing institutions
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
