Chapter 2: European patent litigation under the European Patent Convention (EPC)
The trend in Europe since the advent of the Treaty of Rome in 1957 has been towards legal harmonization within the European Union (EU), something that is particularly evident in regulatory areas where the law has a significant economic impact on the workings of the single market, such as in the areas of free movement (of goods, capital, services and people), competition and consumer protection. Yet, despite its economic importance, patenting in Europe has stubbornly remained a fragmented and complex process, both in application and in enforcement. One clear reason for the lack of harmony within the current European patent system is the longstanding failure – despite many attempts – of the EU to agree on a uniform, harmonized ‘Community Patent’ system, similar to that which has long existed within the EU for Community trade marks (recently renamed EU trade marks). Unlike in the area of trade mark law, for patents the language issue has been a major stumbling block in negotiations. Despite this failure, in addition to the national patent systems of each European country, a non-EU based, pan-European patent system of a kind has actually existed since 1973 under the terms of the European Patent Convention (EPC). Notably, however, because the EPC is not an EU agreement it lacks the administrative and judicial mechanisms – such as the EU Commission and the CJEU, so commonly utilized in the fields of trade mark law and competition law – that might bring harmony to European patent law.
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