The Territoriality Principle and Transnational Use of Patented Inventions – The Wider Reach of a Unitary Patent and the Role of the CJEU (original) (raw)
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At a glance: the European patent with unitary effect
Pharmaceutical Patent Analyst, 2016
Everything is almost ready for a new patent system to come into force in Europe. Its implementation will provide access to a unitary patent and a Unified Patent Court that can be used to centrally enforce and invalidate patents in the relevant member states. This system will provide several advantages and will create a more businessfriendly Europe regarding intellectual property rights. However, also some risks are associated with the new system. This article will provide a general overview over this future system and highlight some strategic options that may be considered when assessing patent filing, enforcement and clearance strategies.
The European patent with unitary effect has in recent years been widely discussed and criticised for a number of reasons. This vivid debate seems to concentrate on such aspects as translations arrangements, the introduction of the system via enhanced cooperation, issues concerning the Unified Patent Court and many more. However, we seem to lack discussion on some of the deeper implications for different areas of law, one of those being the interplay between the unitary patent protection system on the one hand and European Union competition law on the other. At the same time, there is no doubt that those two areas interact strongly, sometimes contradicting each other. Therefore, it is very likely that strengthening the patent protection system might bring some new challenges to the application of competition law, particularly the prohibition to abuse dominant position set out in Art. 102 TFEU. This contribution firstly discusses the key issues of the unitary patent protection system and the interplay between intellectual property rights and competition law. The article then attempts to identify the main threats, which might be brought by the European unitary patent system to the application of competition law. The article thus identifies the following points which indeed may result in real challenges to competition law: (1) the need to rethink the notion of a geographic market due to the unitary effect of the patent, and (2) supporting patent trolling and vexatious litigation by introducing the translations regime and the Unified Patent Court.
Developing an International Patent: Detaching from Principle of Territoriality
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The call for international or universal patent protection has intensified in response to the recognized necessity of safeguarding intellectual property rights. The current system, characterized by fragmented national or regional patent rights, presents challenges in terms of recognition, protection, and enforcement, exacerbating the risk of infringement. However, the development of an international patent system with unitary effect has been slow or non-existent. Proponents argue that such a system would offer enhanced protection and foster innovation and economic growth by providing simultaneous protection across multiple territories with a single application having unitary effect. Despite efforts towards harmonization, significant disparities persist in procedural laws across national and regional patent systems, underscoring the enduring influence of territoriality. An international patent system holds the potential to address the challenges posed by territoriality, potentially reshaping patent rights in a global context.
The Progress to Date with the Unitary European Patent and the Unified Patent Court for Europe
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Following political agreement in the European Council in June 2012, the EU enacted legislation to establish the European patent with unitary effect in December 2012 and most EU member states signed an international treaty in February 2013, outside the framework of the EU, to establish a Unified Patent Court with jurisdiction not only over the new European patent with unitary effect but also, subject to transitional provisions, traditional European patents designating one or more EU member states. The new system is likely to come into effect in 2015. The shape of the new system is coming into focus and this article reviews the progress to date in implementing it, what remains to be done, and what industry should be doing in preparation for it.
New European Patent System: A Long Way To The Unitary Patent
The business throughout Europe have long have long called for the introduction of a patent system suitable for their needs, with the existing arrangements under the EPC being both costly (an annual maintenance fee is to be paid in every participating state where protection is sought) and ineffective in terms of administrative requirements. Among the criticized features is the need to validate it through national offices together with the requirement of providing translations of the patent. Various proposals were presented on the EU platform over the last 4 decades but neither of them was adopted in the end. The question of the language for the unitary patent which of course is being closely connected to the issue of costs as well as the procedure for dispute resolutions became quickly a point of dispute. The initial idea of granting the authority to hear and decide patent disputes to the designated courts of the member states was rejected. In 2012, a package consisting of two Regulations and an international agreement on the establishment of the Unitary Patent Court was approved under the enhanced cooperation procedure. However it is not clear when it becomes into effect as it is dependent on the ratification process of the agreement which is going slowly than expected. An action brought by Spain which claims that the package is contrary to the EU law, is still pending before the CJEU. The system is opened to EU member states only (with the CJEU rejecting the idea of making it available to other countries interested in joining it). The unitary patent is based on the existing European patent and will be administered by the EPO. The main objectives as described above wee addressed as the need for translations was significantly reduced, however the amount of fees was not set yet. Also the position of the patent court towards the CJEU remains unclear and will be subject to further interpretation.
Update on the Unitary Patent Court and the European Patent with Unitary Effect
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Several recent developments as to the new patent system that will be put into place in Europe in the next couple of years make it timely to update earlier articles in this series on this subject and to provide a progress report on it. On 5 May 2015 the Court of Justice of the European Union rejected the legal challenges to one aspect of the new system, the European patent with unitary effect, mounted by Spain, and earlier in 2015 proposals as to the fee structure for this new type of European patent were issued by the European Patent Office. Preparations continue with establishing the other aspect of the new system, the Unified Patent Court, in which litigation on the European patent with unitary effect and also, subject to transitional provisions, classical European patents, will take place. A significant recent development as to the Unified Patent Court has been the publication for consultation, by the Preparatory Committee, on 8 May 2015, of a proposal for its fee structure.
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Perspectives on Federalism, 2015
This paper will deal with EU competence over patent law, especially in the context of the TRIPS Agreement with reference to the ruling of CJEU in the Daiichi Sankyo case (CJEU case C-414/11 Daiichi Sankyo v DEMO Anonimos). The first part will explain the process of claiming patents at the national as well as the European level in order to understand the complexity of patent law, the second part will deal with the implications of jurisdiction and developments in EU patent regulations, the third part will deal with the effects of EU competence over the TRIPS patent provisions and the forth part will deal with the interpretation of substantive patent law in the light of the Daiichi Sankyo case.