The unitary patent package - Court competence and substantive law

Abstract: The unitary patent package (Regulation 1257/2012 creating a unitary patent protection (UPR) , Regulation 1260/2012 on language regime creating a unitary patent protection (UPRL) , and the Agreement on a Unified Patent Court (UPCA) ) will make it possible to apply for a single patent (European patent with unitary effect or EPUE) at the non-EU European Patent Office (EPO) in Munich. EPUE will cover the territory of the participating Member States and a trans-national court structure (the Unified Patent Court or UPC) will have exclusive jurisdiction regarding inter alia infringement and revocation of EPUE within the UPCA states. UPC will run in parallel to national patent court systems and will ultimately take over jurisdiction regarding traditional European patents within the UPCA states. The unitary patent package is a compromise. It is complex, unconventional, and elusive. It is wrangled to satisfy many interests, resulting in this unexpected solution. First, not all EU Member States are parties to the cooperation creating EPUE. Secondly, the Regulations lack substantive law. Thirdly, patent granting will done by the European patent office, outside the Union framework. Finally, the new court will be a new international court, but it will not be a Union court. The solution risks violating legal certainty and granting lacks judicial review. This unconventional solution calls into question the legal nature of the new patent (EPUE). It is unclear if it is a new sui generis right defined at the Union level or if it is a unitary requirement to harmonise European patents at the national level. It might actually be a Union right defined by national and international law. An additional question is if the new court (UPC) shall apply fragmented national patent laws in each member state, if it shall apply Union law, or if it shall apply a new autonomous and super-national UPC acquis. In this thesis, these questions will be investigated from the point of European Union law and private international law. UPC will have exclusive competence regarding validation and infringement of European patent, European patent applications, Supplementary Protection Certificates, and EPUE. The court will have jurisdiction when at least one of the Contracting Member States has jurisdiction according to settled Union rules but generally not otherwise. In addition, UPC will have jurisdiction under certain circumstances when the defendant is domiciled outside the European Union. UPC shall apply the substantive law of the Unified Patent Court Agreement (UPCA), national law, Union law, and international law when making decisions. Union law already regulates designation of applicable law and substantive law to some extent, making the scope for a UPC acquis limited. National law will govern patents as an object of property, prior use, compulsory and contractual licensing, employment inventions and shared rights. National law also apply to effect and limitation of patents and damages although UPCA makes efforts to harmonize effects and limitations. Union law will govern supplementary protection certificates (SPCs), translation requirements, minimum requirements on patent enforcement, exhaustion, as well as competition and fundamental rights aspects. The European patent convention (EPC) will regulate patentability, scope of protection, and authentic language. UPR will primarily contribute by making patent granting and renewal simpler and cheaper by removing national validation and centralizing annual renewals. Efforts to harmonise patent laws are primarily done by UPCA outside the Union framework. It is however likely that the Court of Justice of the European Union (CJEU) will play an important role by ensuring consistent interpretation, both between courts within the cooperation, and between the cooperation and courts in EU states outside the cooperation.