Unitary Patent Package Research Articles

Brexit and the Unitary Patent Package: A Further Compromised Future?

By Aisling McMahon. Developing a unitary patent system for Europe has been debated for over 50 years but never achieved. Nonetheless, a unitary patent package (UPP) for the current 25 EU Member States who wish to participate is now within grasp. However, as this system neared completion, the UK voted to leave the EU by referendum on 23 June 2016. The UK subsequently triggered Article 50 TEU on 29 March 2017 commencing its withdrawal from the EU (Brexit) in a process expected to take two years. Beyond the broader legal and political questions which Brexit gives rise to, it raises a key question for patent lawyers, namely, whether, and under what circumstances, the UK can continue to participate in the Unified Patent Court (UPCt) system and European Patent with Unitary Effect (EPUE) when it leaves the EU? In November 2016, despite the Brexit vote, the UK government confirmed its intention to join the Agreement on the Unified Patent Court (AUPC) — and subsequently ratified the AUPC on 26 April 2018. However, this article argues that in light of the complex relationship the UPCt has with the EU, including, the primacy of EU law in the operation of the UPCt and links between the UPCt and the Court of Justice of the European Union (CJEU), joining the AUPC at this point is a curious move and one which is inconsistent with the UK’s previous more general statements on Brexit. In particular, in February 2017 Theresa May while outlining key facets of Brexit stated that the UK would not be subject to the jurisdiction of the CJEU once it leaves the EU. The article highlights the difficulties with ameliorating this position with the UK’s continued participation in the UPP post-Brexit. It argues that Brexit will likely sound the death knell for the UK’s membership of EPUE. Moreover, although UK participation in the UPCt seems more likely there remains considerable challenges to tackle in this respect. Furthermore, the question mark that exists over the UK’s participation in the UPCt and EPUE post-Brexit has attendant consequences for the general feasibility of the UPP. Accordingly, this article argues that instead of focusing on how to keep the UK within the currently devised system, Brexit provides further impetus to pause and consider whether the current proposal is still worthwhile given that it will create a more complex and fragmented European patent landscape at the supranational level. Instead, it echoes calls that a better solution would be to consider ways to modify the current system or redesign a new system to include not just the UK but also other European Patent Convention states which are not in the EU.

From the Unitary Patent Package to a Federal EU Patent Law

Abstract For the last forty years, the European Union has been pursuing the goal of a unified system of patent law, which would make it possible for an invention to be protected, by EU law, throughout the territory of the Member-States, with a single application. This would simplify the patent protection system, making it easier, less costly and more secure, and would facilitate access to the internal market and promote scientific and technological development. However, problems might arise because of the plurality of legal sources that could be involved and due to the fact that not all countries want to be part of this new system. Nevertheless, the involvement of the majority of the Member-States in the Unitary Patent Package, through participating in an international agreement and in using the EU’s enhanced cooperation mechanism, is evidence of federalist manifestations of the EU as a sui generis organisation.

The Viability of the Unitary Patent Package After the UK’s Ratification of the Agreement on a Unified Patent Court

The viability of the unitary patent package after the Brexit vote depends, to a large extent, on a political choice. However, whichever choice is made will entail certain legal consequences that deserve careful consideration. This article analyses the various possible scenarios for the viability of the unitary patent system after the UK’s ratification of the Agreement on a Unified Patent Court. The study traces different angles, with and without the participation of the United Kingdom in such system. Along this line, the hypotheses used cover several situations, either blocking the UK’s participation in the system or envisaging it to the fullest. The consequences of the UK’s participation in the system for third States are also addressed. The study reveals that there are several alternatives for setting the system in motion after the UK’s ratification of the Agreement on a Unified Patent Court; however, the option of keeping the status quo is not among them.

Hovering between intergovernmentalism and unionization:the shape of unitary patents

The unitary patent package is shielded against external judicial review in multiple ways. The norms providing the unitary patent its substantive contents, the Agreement on a Unified Patent Court (AUPC) and the European Patent Convention (EPC), are largely shielded from judicial review. European Patent Office (EPO) decisions cannot be subjected to direct scrutiny before EU courts either. Whereas the unitary patent and EPC systems will likely converge based on shared expert rule, EU law is at the same time subjected to fragmentation. Its core principles concerning legality and judicial review are being undermined in the process. However, through the preliminary ruling procedure, general EU norms and legal principles may still affect the package considerably more than envisioned by the architects thereof. Moreover, Brexit will require re-opening the package, and might open a window of opportunity for a political process leading to an improved design mending the current systemic defects.

Reset and Go: The Unitary Patent System Post-Brexit

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 twice by the CJEU in spite of severe doubts concerning EU law compatibility. Just as the race seemed to near finish line, the June 2016 Brexit referendum put a spoke in the EU’s wheel. Against the backdrop of a brief review of the systemic rivalry, this paper recounts and assesses the CJEU’s recent case law on the legality of the UP Package, the implications of the Brexit vote and the prospects, if any, for the unitary patent post-Brexit.

An Institutional Examination of the Implications of the Unitary Patent Package for the Morality Provisions: a Fragmented Future too Far?

This article examines the institutional changes created by the unitary patent package (UPP), including the unified patent court (UPCt), in the European patent system. It focuses specifically on the implications of these changes for the morality provisions for biotech inventions: contained in Art. 53(a) EPC and Art. 6 Biotechnology Directive 98/44EC. These provisions were chosen as a site of investigation because of the overlap of substantive EU and EPC laws involved. Furthermore, despite the identical wording of these provisions in the EPC and Directive, the open-textured nature of the morality provisions requires interpretation by the adjudicative bodies in each institutional framework. Hence, institutional influences on adjudicative bodies are heightened. Accordingly, these provisions provide an ideal site to examine the significance of the addition of another adjudicative body, the UPCt to the European patent system. The article examines the implications of having adjudicative bodies operating in differing institutional frameworks in contexts where States have overlapping obligations to international treaties. It argues that the UPCt is not institutionally configured to apply these provisions in the same manner as the generalist CJEU and demonstrates that the UPCt’s openness to refer questions to the CJEU is crucial to ensuring the UPP does not become blinkered to broader issues. Moreover, it argues that the unitary nature of the European Patent with unitary effect (EPUE) is problematic because it fails to accommodate national divergence on the morality provisions and it is unclear whether morality is to be judged at a national, EPC or EU level. A mechanism for maintaining national divergence in this context is proposed.

Reset and Go: The Unitary Patent System Post-Brexit

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.

The future role of the Unified Patent Court in safeguarding coherence in the European Patent System

After decades of negotiations, European Member States finally agreed on the establishment of the Unified Patent Court (UPC), a centralized and highly specialized court, as part of the Unitary Patent Package. The European patent system is an intricate, multi-level governance system. Safeguarding judicial coherence within such a system requires a continuous “dialogue” not only between different courts in a single country, but also between national courts of different countries, between the European Patent Office (EPO) and national courts, between the quasi-judicial Boards of Appeal of the EPO and the national courts, between the EPO and the UPC, between the Boards of Appeal of the EPO and the UPC, between national courts and the ECJ and between the UPC and the ECJ. The main aim of the article is to examine to what extent the establishment of the UPC may contribute to a dialogue between these actors for the enhancement of judicial coherence of the European patent system. The paper explores different “tools” available for ensuring judicial coherence.

The Unitary Patent Package: One-Stop-Shop or Shopping Mall?

This paper discusses the Unitary Patent Package based on the 16th draft of the Rules of Procedure of the Unified Patent Court. It starts with giving an overview of the current situation of patent litigation in Europe, the need for the unitary patent, the risks and advantages with emphasis on forum shopping and threat of abuse by non-practicing entities (NPEs). It discusses the structure of the UPC and its courts and panels, the available options for forum shopping under the UPC with emphasis on bifurcation of the court proceedings, fee shifting and the potential role that the Court of Appeal can play in rapidly harmonising court practices. Training of panel judges, multinational panel compositions and the highest quality of appeal judges are crucial to the proper functioning and curbing of forum shopping.

European unitary patent: are we there yet?

Once more it appears that Europe is on the brink of a unitary patent and common patent jurisdiction. Both the Unitary Patent Regulation and the Unitary Patent Court Agreement have been subject to much political wrangling, so much so that some might say the former has been eviscerated. The conclusion of the Unitary Patent Package has been shrouded in controversy and a number of important legal questions are still pending, questions we address in this article. First, we will briefly retrace the history of the European Unitary Patent since inception (1), examine the Unitary Patent framework (2), then look at the scope of the Unitary Patent right (3) and the legal basis of the Regulation (4). Next we shall turn to the UPC Agreement to set out its main features (5), briefly comment on the language regime (6), and lastly close with some critical comments (7).

Comments on the Preliminary Set of Provisions for the Rules of Procedure of the Unified Patent Court

This text is a re-formatted version of comments submitted by the Max Planck Institute for Intellectual Property and Competition Law in the public consultation on the 15th draft for Rules of Procedure for the Unified Patent Court conducted between June and October 2013. The comments focus on those Rules and do, in particular, not duplicate criticism for the Unitary Patent Package voiced elsewhere. Three fundamental aspects of particular importance for the functionality of the procedural regime are identified: Warranting uniformity, safeguarding autonomy and establishing an adequate balance of rights and obligations between the parties.The comments underline that, within the strict bounds imposed by the Unitary Patent Package, the Rules offer a well elaborated and substantially comprehensive framework for patent litigation procedures. Nonetheless, certain parts fall short of answering to the requirements imposed by the complexities of the system in which they are embedded. In particular, the Rules should not shy away from suggesting solutions in politically delicate areas if essential for the overall balance and functioning of the system. This concerns, for example, the exercise of discretion regarding the choice of options pursuant to Art. 33(3) UPC or the balancing of interests in the context of granting injunctive relief.

Key Elements of the Unitary Patent Package Adopted by the European Union

For more than four decades, those who supported the creation of a single patent regime with European-wide legal effects must have felt a lot like Sisyphus, struggling pointlessly towards an unreachable goal. This may be about to change in light of the adoption of the “unitary patent package” by the European Union (EU), provided the thirteen Member States (including France, Germany, and the United Kingdom) ultimately ratify the Unified Patent Court Agreement (UPCA).

Coexistence of national patents, European patents and patents with unitary effect

The paper explores how coexistence and complementarity will work under the planned scheme for the creation of a European patent with unitary effect together with a supranational patent court system. It addresses the various (legal, institutional, economic) aspects of the future coexistence of national patents, European patents and European patents with unitary effect. It outlines the existing variations on coexistence within the present European intellectual property framework, then, after a brief summary of the main elements of the current unitary patent package, it goes on to describe how the various patent titles will coexist within the multi-layer system which will be established by that package. That is followed by an analysis of the future coexistence of national and European patent institutions.

The Unitary Patent Package: Twelve Reasons for Concern

A balanced, innovation-friendly and uniform patent system is indispensable for Europe. However, the latest EU proposal for a patent package (Patent Regulation and flanking court system) is both dangerous and misguided. While a superficial glance may create the false impression of a patent law advancement through the proposal, it instead actually threatens to forestall the necessary legal progress and innovation capacities for the foreseeable future. It might prove disastrous to implement a patent system which is already known to be detrimental from both the legal as well as the innovation perspectives. This paper provides a short introduction to the major reasons for concern regarding the current proposals and explains why it is imperative to reconsider the proposals entirely afresh.