Legal Basis of the Unitary Patent: Do Not Play with Fire!

Abstract

Under close scrutiny, it appears that the legal basis of the regulation on the unitary patent is at best questionable. At worst, such doubts could very well mean that the regulation is simply illegal. In a situation where the enhanced cooperation procedure is already undergoing two appeals before the Court of Justice of the European Union (CJEU), the future of the unitary patent cannot afford such a strong legal uncertainty. Hopefully, some amendments to the proposed regulation could help the unitary patent to partly overcome this hindrance.

Keywords: EU patent, unitary patent, unified, European Patent Office, EPO, European Patent Convention, EPC, opinion 1/09, enhanced cooperation