The European Unified Patent Court: Assessment and Implications of the Federalisation of the Patent System in Europe

Abstract

The push for the creation of a European Unified Patent Court (UPC) aims to achieve the federalisation of the patent system in Europe. By replacing the jurisdiction of national courts in the legal disputes relating to patents with unitary effect, the UPC will create a new centralised judicial authority for patent litigation and standard-setting. However, there is evidence that the UPC Agreement was rushed and its impact assessment was not based on valid data. Therefore, questions are raised about the implications it may have, especially those regarding language arrangements in the litigation proceedings and the impact which may arise from the loss of national sovereignty, as national judges will no longer be able to adjust patentability standards to the development and sustainability needs of local businesses. This article examines the impact of the loss of national sovereignty and argues that, to the extent that the UPC establishes a monopolistic source of legal power which escapes the control of the democratic policy-making process, its authority is problematic. Additionally, the findings of relevant studies are analysed in order to evaluate the original arguments of the EU Commission, and to go beyond the narrow context within which the debate on the UPC has been framed.

Keywords: Unitary patent, EU Law, Intellectual Property, Patents, Corporations, SMEs, EPO, EU Commission

JEL Classification: D61, I12, I31, J71, K19, K32, K33