Competition (or confusion?) of models and coexistence of rules from different sources in the European patent with unitary effect:Is there a reasonable alternative?
The article analyses the points of weakness of a European patent with unitary effect. The new texts create not just one, but two new ‘models’ of patent (the unitary patent and the European patent UPCt-style). They will coexist with the two pre-existing ‘models’ (the old European patent and the national patent), causing difficulties of orientation and choice to the inventors. The unitary patent is not really a unitary title: its regime is a bundle of rules coming from different sources (EU Law, Convention Law, national law), and this creates uncertainties. The new rules have been written without considering the results of the patent practice of recent years, and so the new texts seem a missed opportunity for the modernization of patent law in Europe. A better alternative would be the drafting of an EU Regulation on a new EU Patent which absorbs the European Patent Convention (Munich Convention), and entirely regulating the title without references to international or national law. This new EU Patent should be granted by a new European Patent Office, which should supersede the EPO. The jurisdiction should be given to the national courts, and the EU Court of Justice should be able to take preliminary references. The author argues that this solution is not a strange and difficult one; it is just the solution already chosen for the Community trade mark, Community designs, and Community plant varieties.