An enhanced patent system for Europe : the end of gridlock?

Abstract

This thesis analyses the long standing issue of the fragmented patent legal system of Europe. The fact that patent law remains primarily regulated by the national laws of the different EU member states means that achieving unification or at least harmonisation of the patent regime has truly proven to be taxing and often futile for EU legal draftsmen. Currently patents within the European Union are of two kinds: the national patent which is granted by the national patent offices of each Member State and is governed by the national law in question; and the European Patent which falls under the aegis of the European Patent Convention (EPC), whose signatories consist of both EU and non- EU member states, and which once granted is treated for all intents and purposes like a national patent would be in the state for which it has been granted. To date, there exists neither a European Union-wide patent nor a unified court system for patents throughout Europe or the EU for that matter. Chapter 1 provides a historical and modern day overview of the patent law conundrum within Europe. It focuses on the supposed harmonisation provided by the EPC, the failed attempts of such by the Luxembourg Convention of 1975 and the proposed European Patent Litigation System for Europe of 1999, as well as the Commission proposals that followed between 2000 and 2007. Chapter 1 concludes by setting the scene for the discussions taking place in the chapters that follow. Chapter 2 contains a detailed examination of the Council's envisaged Mixed Agreement (to be finalised by the EU, its Member States and third states, comprising of non-EU member states belonging to the EPC) setting up a European and European Union Patents Court (EEUPC), a court which will have jurisdiction to adjudicate the validity and interpretation of both European patents and future EU patents. This chapter examines the relationship between Union law and IPR regulation in the light of the conclusion of the proposed Mixed 4 Agreement. There is also discussion on the role of the individual EU member States in the finalisation of this Mixed Agreement creating the EEUPC, as well as their role within the Court were it to materialise. Furthermore, this chapter outlines the political agreement that was reached in Council, on 4 December 2009, on the creation of the EEUPC (by this mixed agreement). Following the political breakthrough achieved last December, the Council now awaits the go ahead from the Court of Justice by virtue of the delivery of its Opinion, before allowing the Commission to carry out the necessary negotiations with third countries in the hope of finalising the Agreement. Chapter 3 attempts to presage the Court of Justice's reaction to the request for an Opinion submitted by Council on 18 June 2009 on the basis of Article 300(6) EC (now Article 218 (11) TFEU), which reads as follows: 'Is the envisaged Agreement creating a Unified Patent Litigation System (currently named European and Community Patents Court) compatible with the provisions of the Treaty establishing the European Community?' A number of salient issues are discussed in this chapter, namely: (i) the struggle between EU competence and Member State competence in finalising the Agreement; (ii) The envisaged Agreement in the light of the primacy of EU law; (iii) The impact on the EU legal order of an international court (EEUPC) being vested with the exclusive jurisdiction on the validity and interpretation of EU instruments (in this case the future EU patent). Chapter 4 discusses the translation regime to be applied to patents, the language question marks one of the greatest, if not the greatest hurdle encountered by European Union legislators in creating a truly unitary EU patent and consequently achieving a unified court system for patents throughout the Union.