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  • Series: European Intellectual Property Institutes Network series x
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Christophe Geiger, Craig Allen Nard and Xavier Seuba

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Christophe Geiger and Elena Izyumenko

The present chapter provides the first comprehensive overview of the European Court of Human Rights’ case law on IP for the period since the Court’s inception until today. It results from an analysis of more than 90 such cases, many of which have never been discussed before in the literature. This comprehensive overview shows the emergence in Europe of a human rights framework for the intellectual property system, which – in combination with the increasing use of fundamental rights by national courts to solve private-party disputes – is gaining in coherence and relevance when framing the conception and use of IP law.

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Aurora Plomer

The constitutional limitations of the European Court of Human Rights (ECHR) constrain the role of the Court in defining the scope of intellectual property rights (IPRs) and their enforcement. This chapter analyses these limitations by explaining the contested origins of the right to property and the paradoxical conferral of property rights to ‘legal persons’; setting out the constitutional constraints on the exercise of the Court’s jurisdiction; and reviewing the Court’s case law on IP rights. These considerations explain the very low volume of IPR applications and why the Court is an unlikely forum for the enforcement of IPRs.

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Thomas Cottier

This chapter first expounds the history of the relationship and the special status of property protection as an institutional guarantee depending upon legislation in case law of European and international courts of law. Upon reviewing the case law of international courts and tribunals and the challenges of the post-Gutenberg information society, it suggests that human rights should inform the shaping and interpretation of copyright rules. A methodology is developed to this effect and includes the assessment of the impact of all relevant human rights and of statutory exceptions in the process of law-making and the implementation of copyright rules.

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Jonathan Griffiths

Copyright law is only partially harmonised in the European Union. Over the last few years, however, the Court of Justice has begun to develop a more fully articulated body of copyright rules. In doing so, it has increasingly been guided by the apparent requirements of the Charter of Fundamental Rights, a development described by some as ‘constitutionalisation’. This chapter sketches this process and considers how far it might be carried. Could it lead to (i) a more fully harmonised set of exceptions and limitations at Union level or (ii) the recognition of additional rights for authors and other right-holders?

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Vincent Cassiers and Alain Strowel

The Court of Justice of the European Union (CJEU) shapes intellectual property law by interpreting primary and secondary EU law, by identifying ‘autonomous concepts of EU law’, and by balancing intellectual property (IP) rights with fundamental rights and competition law. This leads to what could be called “CJEU-made law” for IP. The growing number and importance of cases brought before the CJEU and the need to have IP consistently interpreted and adequately fine-tuned require revisiting the working of the CJEU. One possible avenue would involve the creation of a specialized chamber for IP.

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Stefan Luginbuehl and Teodora Kandeva

Through the iterations of establishing a common European Patent Court, one important aspect has been the role of the Court of Justice of the European Union (CJEU). This chapter provides a historical overview of the stages of establishing a European Patent Court system focusing on the varying degrees of involvement of the CJEU and its final role provided for in the Agreement on a Unified Patent Court.

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Clement Salung Petersen and Jens Schovsbo

The Unified Patent Court (UPC) will be a new court system common to the European Union Member States that adopt the unitary patent package. Because of the biases embodied in the UPC institutional setup, there is a risk that non-technical values and interests will be either overlooked or underdeveloped in UPC decision-making. In this chapter, we will analyse how these blind spots can be covered in patent litigation. We will focus on the role of the UPC judges and third parties in establishing a basis for UPC decision-making, and recommend how to interpret the existing rules and principles.

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Sam Granata

Article 35 of the Unified Patent Court Agreement (UPCA) establishes a ‘Patent Mediation and Arbitration Centre’ which will provide facilities for mediation and arbitration of patent disputes falling within the scope of the UPCA. It will also establish the rules on mediation and arbitration and will draw up a list of mediators and arbitrators to assist parties in the settlement of their disputes. In this chapter, an overview is provided (i) explaining the unique position the UPC has created in the dispute resolution market (one-stop shop dispute resolution system) and (ii) examining the Operational Rules.

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Xavier Seuba

This chapter analyses the advantages and challenges of having technical judges in patent litigation. The inclusion of technical judges is intended to enhance quality in patent adjudication and raises institutional and systemic questions. Technical judges of the Unified Patent Court will have equal legal standing to legal judges and will be involved in the adjudication process from beginning to end. Therefore, in addition to developing an excellent knowledge of the rules of procedure, they must acquire a sound understanding of fair trial principles and the interface between patent law and the broader legal order.