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Max Planck Institute for Intellectual Property and Competition Law Research Paper No. 12-03
Hanns Ullrich

page 23
Worse, the exclusionary effect of building an enhanced cooperation group for a unitary patent at a restrictive language regime is reinforced by Art. 328 TFEU, which purports to guarantee open access to the enhanced cooperation, but requires the candidate to accept all the acts adopted by the Member States participating in enhanced cooperation (including their language regime !). Given that the integration purpose of enhanced cooperation ultimately is the attainment of a completely EU-wide unitary patent protection, this rule means that Italy and Spain are excluded from the development of a patent policy, which is to become a EU patent policy. They are so excluded on language grounds and irrespective of that they share the policy objective of enhanced cooperation in the field of unitary patent protection, and that they do consent to the configuration, which all EU Member States have given to such a patent system. Moreover, as they will not be able to influence its further development

page 27
(ii) In the latter respect, a particular problem arises from that enhanced cooperation for a unitary patent tends to deepen the divide between the participating and the non-participating Member States. This is a problem of both preserving the Internal Market from being undermined and of preventing distortions of competition. It arises from that firms seeking patent protection may be satisfied with obtaining it for the larger territory of enhanced cooperation, and, for various reasons of their patenting strategy, forego protection in the territories of the non-participating Member States.

page 33
Enhanced cooperation for a unitary patent would cut a large piece out of this sovereign power of the Union and allow a number of Member States to appropriate it for their own purposes.

page 37 a typo
16, by a priciple making the law of the protected patentee apply,

page 41
Such parochial orientation of the grant of compulsory licenses with its effects on the conditions of competition, in particular on market actors risks and expectations, practically is inherent in the referral to national rules on compulsory licenses, but not at all a necessary result of enhanced cooperation or of the nature or structure of the unitary patent. Quite to the contrary. There is, indeed, a fundamental contradiction in the proposed UPP-Regulation, which is that where the use of a unitary patent granted with respect and in the interest of the internal market of enhanced cooperation results in blocking the realization of a European Unions public interest (or, for that matter, a public interest of the enhanced cooperation group), that blocking situation can be overcome only by national compulsory licenses to be requested from 25 national jurisdictions.

page 45

page 58
The EPC/UPCt patent and its uniform rules, therefore, are Union specific. Yet, by excluding the ECJ from overseeing the system of EPC/UPCt bundle patents, the coherence of the EU legal-economic order will be put at risk.
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