The Unified Patent Court (UPC), Compulsory Licensing and Competition Law

Nordiskt Immaterieelt Rättskydd (NIR), Forthcoming

17 Pages Posted: 30 Aug 2014 Last revised: 3 Sep 2014

See all articles by Clement Salung Petersen

Clement Salung Petersen

University of Copenhagen, Centre for Enterprise Liability

Thomas Riis

University of Copenhagen; University of Copenhagen - Faculty of Law

Jens Schovsbo

Centre for Information and Innovation Law (CIIR)

Date Written: August 29, 2014

Abstract

Competition law and rules on compulsory licensing are considered as indispensable instruments to balance patent rights. In this article, we examine the room for using such balancing instruments in the context of the UPC. We analyse whether the balancing instruments will remain applicable to European patents (with or without unitary effect) and to what extent the UPC will have competence to use these balancing instruments in cases brought before it. Our analysis shows that the UPC to some extent will have competence to use the balancing instruments mentioned, but also that there is a risk that the UPC is likely to be less inclined to use them. To redress that problem we suggest that the UPC acknowledges the institutional biases of the court and looks for ways to include other values and interests than the proprietary values and interests of patent law.

Keywords: Unified Patent Court, competition Law, patents, EU

Suggested Citation

Petersen, Clement Salung and Riis, Thomas and Schovsbo, Jens, The Unified Patent Court (UPC), Compulsory Licensing and Competition Law (August 29, 2014). Nordiskt Immaterieelt Rättskydd (NIR), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2489006

Clement Salung Petersen

University of Copenhagen, Centre for Enterprise Liability ( email )

DK-1455 Copenhagen
Denmark

Thomas Riis

University of Copenhagen ( email )

Studiestraede 6
Copenhagen, DK - 1455
Denmark

University of Copenhagen - Faculty of Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

Jens Schovsbo (Contact Author)

Centre for Information and Innovation Law (CIIR) ( email )

University of Copenhagen
Karen Blixens Plads 16
Copenhagen, 2300
Denmark

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