The Unified Patent Court and the Transformation of the European Patent System
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The Unified Patent Court and the Transformation of the European Patent System Aurora Plomer
Max Planck Institute for Innovation and Competition, Munich 2020
Harmonisation of the European patent system was singled out by the Council of Europe in 1949 as one of the three top priorities for the reconstruction of Europe at the end of WWII. The latest setback in the German Constitutional Court in case No. BvR 739/17 and the challenges posed by Brexit to the future of the Unified Patent Court are characteristic of a project whose realisation has proved stubbornly difficult for historical and structural reasons. Legal uncertainty and doubts are poised to persist even if the voting requirements for ratification in Germany are met. The reasons are fourfold. First, the Unified Patent Court Agreement (UPCA) is a uniquely complex Treaty, straddling across international, European Union and national laws, creating an unprecedented ‘‘international’’ court also defined as a common court of the Member States (Art. 1) under an obligation to apply European Union law in its entirety (Art. 24(1)(a)). It has exclusive jurisdiction (Art. 32) for the enforcement of ‘‘European Patents with Unitary Effect’’ (EUPE), created by EU legislation but granted and administered by the EPO (Regulation (EU) No. 1257/2012, Art. 9), and it is an autonomous international organisation outside the European Union. Inevitably, the grey areas and inherent tensions in this legal scaffold are extensive and well documented. To single out some pressing questions, as the UPCA does not specify the conditions and applicable law for a Member’s continuing participation upon leaving the EU or its withdrawal from the UPCA,1 it is unclear whether this is to be determined by reference to the Vienna Convention on the Law of Treaties and/or 1 As announced by the UK to the media blog IAM https://www.iam-media.com/law-policy/uk-no-upc. For comments on whether the UPC is being used as a bargaining chip by the UK in the Brexit negotiations see http://patentblog.kluweriplaw.com/2020/03/03/uk-backs-out-of-the-unitary-patent-system-ablow-the-end-of-it-or-just-tactics/?doing_wp_cron=1594117050.5273120403289794921875.
A. Plomer (&) Professor of Intellectual Property and Human Rights School of Law, University of Bristol, Bristol, UK e-mail: [email protected]
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A. Plomer
European Union Law, notably the CJEU’s Opinion 1/09 which declared the UPC’s predecessor incompatible with the Treaties. Detailed legal analyses on the possibility of the UK’s continuing participation post-Brexit and the economic value of the UPC without the UK have come to different conclusions.2 Secondly, the purpose of European patent integration is to facilitate completion of the establishment of a single market (Art. 3(3) TEU), but the UPCA defeats that purpose by formally fracturing the EU market between the 25 participating States (currently still including the UK) and the non-participating States (Spain, Poland and Croatia) as well as (possibly) the States which originally signed but have not r
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