Select from Within the System: The European Patent with Unitary Effect

Abstract

Further to the failed efforts to create a European Union patent (ex Community patent), the European Union’s legislator currently prepares the introduction of a "European patent with unitary effect" as a matter of enhanced cooperation among a majority of EU Member States. The paper analyses this ambiguous form of a unitary patent as part of the broader system of patent protection in Europe. More particularly, the concern of the paper is with the increasing complexity of the Union’s multi-level system of patent protection, which will result from the co-existence and optional availability of purely national patents, of a territorially selective bundle of national patents granted by the European Patent Organization, and of the European patent with a territorially unitary effect. This complexity will be exacerbated, first, by the different multi-layer structures of the European patent proper and of the unitary patent respectively, and, second, by the ambiguous legal nature of the unitary patent (in part union law, in part national law, in part international law). In addition, both the European patent proper, as up-graded by an international "Agreement on a Unified Patent Court", and, more particularly, the unitary patent are characterized by systemic imbalances, and affected by serious doubts about their compatibility with European Union law. For all these reasons, the paper concludes that, instead of establishing a highly complex and asymmetric system of patents on unsafe legal ground, an entirely fresh approach to EU-wide patent protection is necessary. This would be all the more opportune as the European patent with unitary effect neither represents a real effort of advanced integration nor addresses any of the pressing issues of modernization of patent protection.

Keywords: Intellectual property, European Union law, European patents, unitary patent protection, enhanced cooperation, multi-level system of protection, rule of optionality, systemic imbalances of patent protection, patents as an object of property, compulsory licences, prior user rights