The EU reinvents the wheel: A study on the challenges of the Arbitration and Mediation Centre in the Unified Patent System

Abstract: The Unitary Patent is a patent proposed by the EU that will make it possible for inventors to protect their inventions in all Member States by submitting a single patent application. This is intended to simplify the patent application procedure and mitigate the associated costs. The new patent is to be enforced under the exclusive jurisdiction of the Unified Patent Court. The Court is envisioned to provide swift decisions of high quality in disputes concerning the Unitary Patent. Together with the Court, an Arbitration and Mediation Centre is to be established, which is intended to complement the Court by offering a cost and time effective alternative to litigation. By introducing the Centre, the EU is for the first time sanctioning arbitration as a tool for solving IP disputes. Thus, the Centre will compete with established private arbitration and mediation institutes. The purpose of this thesis is to analyse what legal challenges the Arbitration and Mediation Centre is facing and make suggestions to how they should handle these challenges. International commercial disputes are frequently resolved by means of arbitration and mediation. Patent disputes are also regularly arbitrated and mediated in non-governmental forums and concluded in private arrangement. This thesis analyses whether the procedural rules and institutional set up of the Centre is appealing to the needs of the parties. The results of this thesis show that arbitration and mediation are chosen over court litigation due to among other things flexibility, autonomy and confidentiality. These advantages are especially appreciated in patent disputes. The Arbitration and Mediation Centre seems to be limiting the choice of law, thus restricting the flexibility and autonomy of the parties. In a similar way, the Centre seems to be bound by transparency rules, which may conflict with the confidentiality. The results of this thesis suggest that there is more work to be done by the EU to appeal to the needs of the parties and to be able to compete with the most popular private institutes.