Reset and Go: The Unitary Patent System Post-Brexit

Abstract

Patent law in Europe is characterized by a historic rivalry between EU and non-EU patent systems. The EU for decades could not establish a working, attractive and balanced system of its own. After the failure of its well-tailored 2009 model, the Commission was determined to push ahead with the patent plans even at the cost of compromise that severely damaged the functionality of the patent system. The result was the 2012 Unitary Patent Package, which has since been cleared by the CJEU twice already in spite of severe doubts of EU law compatibility. Just as the race seemed to near finish, the June 2016 Brexit referendum put a spoke in the EU’s wheel. Against a brief recount of the systemic rivalry, this paper recounts and assesses the CJEU’s recent case law on the legality of the Unitary Patent Package, the implications of the Brexit vote and the prospects, if any, for the Unitary patent post-Brexit.