Constructing European Intellectual Property
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Constructing European Intellectual Property

Achievements and New Perspectives

Edited by Christophe Geiger

This detailed study presents various perspectives on what further actions are necessary to provide the circumstances and tools for the construction of a truly balanced European intellectual property system. The book takes as its starting point that the ultimate aim of such a system should be to ensure sustainable and innovation-based economic growth while enhancing free circulation of ideas and cultural expressions. Being the first in the European Intellectual Property Institutes Network (EIPIN) series, this book lays down some concrete foundations for a deeper understanding of European intellectual property law and its complex interplay with other fields of jurisprudence as well as its impact on a broad array of spheres of social interaction. In so doing, it provides a well needed platform for further research.
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Chapter 9: Constructing an efficient and balanced European patent system: 'muddling through'

Jens Schovsbo


The title I have been given calls for a number of clarifications: Apatent system consists of both of rules and institutions. At the core are the specific patent rules and the patent offices (PTOs) which are dedicated to the issuing of patents. Often complications will arise at the interface between the patent system and the general legal system consisting of e.g. contract law, competition law and procedural law, the general court system, and the international framework found in the IPR conventions and treaties. In the following my focus will be limited to the specific patent rules and institution of the EU. An efficient patent system is one that achieves the overall goals set out for it and a balanced system is one that does so in a way which maximizes the overall societal interests. The notion of ‘balance’ implies that patents incur costs on society. The aim of the legislator, therefore, should be to balance the costs with the gains. Behind these points, is the general idea that issuing patents is not in itself the goal of the patent system. Instead, patents are the means for achieving certain overall societal goals. A European (in the following ‘EU’) patent system (as opposed to a global or national one) seeks to protect specific EU policy interests and to provide EU companies (and ultimately the EU citizens) with the advantage of efficient protection on their home market. The development on the EU level needs to be synchronized with the developments on the global scene. For the following my focus will be on the regional/national interface. Any EU legislative harmonization initiative thus also needs to take into account the specific European historical and cultural background. Because of the expansion of the patentable subject matter and since patent harmonization now also covers matters of procedural law and issues such as litigation the task of finding common EU grounds has become more difficult.

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