European Harmonisation of Intellectual Property Law: Towards a Competitive Model and a Critique of the Proposed Unified Patent Court
Jan M. Smits
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
July 26, 2012
Published in: Ansgar Ohly & Justine Pila (eds.), The Europeanization of Intellectual Property Law: Towards a European Legal Methodology, Oxford [Oxford University Press] 2013, pp. 39-55
Maastricht European Private Law Institute Working Paper 2012/16
This contribution compares the European harmonisation of intellectual property law (in particular of patent law) with harmonisation in European private law in general. This critical comparison allows lessons to be drawn on what to encourage and what to avoid in developing the two areas. Next to a comparative discussion of the need for harmonisation and of the used methods, ample attention is paid to the 2011 EU Proposal for unitary patent protection, aiming to create a unified European patent and the parallel effort to create a Unified Patent Court. In contrast with the approach of the European Union towards centralised patent protection, we offer an alternative account towards convergence of patent law. In this competitive model of patent law, the decision to apply for a national, European or unified patent is left to the parties. In addition, parties can not only address the future unified court, but are also allowed to address the national court of their choice. This should stimulate a competition among patent offices and courts to provide a patent protection that is uniform, of high quality, speedy and cheap. This has the potential to lead to ‘convergence through choice’ towards the patent regime that fares best in view of the needs of market actors.
Number of Pages in PDF File: 20
Keywords: IP law, European patent, Unified Patent Court, Uniform interpretation, Optional regimes
JEL Classification: O3, 034Accepted Paper Series
Date posted: July 26, 2012 ; Last revised: January 2, 2015
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