The European Patent with Unitary Effect: Incentive to Dominate?

Abstract

The European patent with unitary effect has in recent years been widely discussed and criticised for a number of reasons. This vivid debate seems to concentrate on such aspects as translations arrangements, the introduction of the system via enhanced cooperation, issues concerning the Unified Patent Court and many more. However, we seem to lack discussion on some of the deeper implications for different areas of law, one of those being the interplay between the unitary patent protection system on the one hand and European Union competition law on the other. At the same time, there is no doubt that those two areas interact strongly, sometimes contradicting each other. Therefore, it is very likely that strengthening the patent protection system might bring some new challenges to the application of competition law, particularly the prohibition to abuse dominant position set out in Art. 102 TFEU. This contribution firstly discusses the key issues of the unitary patent protection system and the interplay between intellectual property rights and competition law. The article then attempts to identify the main threats, which might be brought by the European unitary patent system to the application of competition law. The article thus identifies the following points which indeed may result in real challenges to competition law: (1) the need to rethink the notion of a geographic market due to the unitary effect of the patent, and (2) supporting patent trolling and vexatious litigation by introducing the translations regime and the Unified Patent Court.