The New European Patent

The New European Patent

by Alfredo Ilardi


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On 17 December 2012, following a complex negotiation which lasted 12 years, the European Parliament adopted Regulations (EU) 1257/2012 and 1260/2012 and the text of the Agreement on a Unified Patent Court (UPC Agreement). These instruments institute the 'European patent with unitary effect', the first unified system for the protection of inventions within the European Union. The two Regulations will be applicable after the entry into force of the UPC Agreement, which was signed on 19 February 2013 by 24 Member States of the European Union.This book traces the evolution of the idea behind the institution of the European patent with unitary effect, including a comparative analysis of the existing parallel regional and international procedures for the protection of inventions. It presents a synthesis of the different phases of the negotiations which led to the adoption of the first unitary patent system within the European Union. In addition it examines the provisions of the two Regulations, of the UPC Agreement and of the jurisdictional system under Brussels I Regulation. Finally, the Appendix contains the text of Regulations (EU) 1257 and 1260/2012 and of the UPC Agreement.

Product Details

ISBN-13: 9781849468336
Publisher: Hart Publishing
Publication date: 06/18/2015
Pages: 164
Product dimensions: 6.14(w) x 9.21(h) x 0.60(d)

About the Author

Alfredo Ilardi is former Head of the Collection of Laws and Treaties of the World Intellectual Property Organization (WIPO).

Table of Contents

Preface v

List of Abbreviations xi

Author's Note xiii

1 Innovation and the Industrial Property Protection Systems in the European Union 1

I The Genesis of Innovation 1

II Patent Protection as an Incentive to Innovation 2

III The Systems of Industrial Property Protection within the European Union: The Community Trademark and the Community Industrial Design 3

IV The Lack of a Unitary Patent System within the EU 5

2 Towards the Establishment of an Integrated European Patent System for the Protection of Inventions 6

I First Attempts at the International Harmonisation of National Patent Legislations and Procedures 6

II The 1962 Draft Convention for a European Patent Law-The 1969 Memorandum on the Setting up of a European System for the Grant of Patents - The European Patent Convention and the Community Patent Convention 8

III Parallel International Developments: The PCT 12

IV 1978-94: Towards a Global Protection of Intellectual Property Rights. The Project for the Revision of the Paris Convention for the Protection of Industrial Property and the TRIPS Agreement 13

V New Attempts at the Establishment of the Community Patent System 16

3 The First Phase of the Negotiations for the Adoption of a Regulation on the Community Patent 18

I The Commission Proposal for a Council Regulation on the Community Patent (2000) 18

II The Common Political Approach (2003) 21

III Commission Proposals on Jurisdictional Matters (2003) 22

IV The 2006 Consultation and the Subsequent Commission Communication on the Strengthening of the Patent System in Europe (2007) 24

4 The Second Phase of the Negotiations for the Adoption of a Regulation on the Community Patent: Enhanced Cooperation 27

I Stagnation of the Negotiations: General Considerations 2008-11 27

II The Decision Authorising the 'Enhanced Cooperation' in the Area of the Creation of Unitary Patent Protection (2010) 27

III The Legal Basis of 'Enhanced Cooperation': The Council Decision of 11 March 2011 29

IV The Debate on the Creation of a Unified Patent Litigation System: The Decision of the European Court of Justice on the Creation of a European Patent Court (2011) 31

5 Carrying out the Enhanced Cooperation 34

I The Council Decision of 10 March 2011 and the Opinion of the European Court of Justice of 8 March 2011 34

II Two Commission Proposals of 26 May 2011 in Relation to the Creation of Unitary Patent Protection and with Regard to the Applicable Translation Arrangements 34

III The Presidency Proposal of 26 May 2011 for the Resumption of Negotiations on the Creation of a Unified Patent Litigation System 36

TV Agreement on the 'Patent Package': Approval by the European Parliament on 11 December 2012 37

6 The European Patent with Unitary Effect 39

I Introduction: The Legal Nature of the Regulations 39

II Regulation (EU) 1257/2012 of 17 December 2012 41

A The Legal Basis and Structure of the Regulation 41

B Unitary Effect 41

C Effect of Registration 42

D Rights Conferred 42

E The Unitary Patent as an Object of Property 42

F Administration of the Unitary Patent 43

G Financial and Final Provisions: Entry into Force 43

III Regulation (EU) 1260/2012 of 17 December 2012 45

A Legal Basis 45

B Situations Covered 45

IV Conclusion 47

7 The Unified Patent Court 49

I Introduction 49

II The UPC Agreement and the Statute 49

A General and Institutional Provisions 49

i The Court of First Instance 50

ii The Court of Appeal 51

iii The Registry 52

iv Primacy of EU Law, Sources of Law and Substantive Law 52

v International Jurisdiction and Competence 53

vi Patent Mediation and Arbitration 54

B Organisational and Procedural Provisions 54

i Legal Capacity 55

ii Representation 55

iii Language of Proceedings 55

iv Proceedings before the Court 56

v Powers of the Court 56

vi Appeals 57

vii Decisions 57

C Transitional Regime 57

8 The Implementation of the UPC Agreement 59

I The Elements for the Entry into Force and for the Implementation of the UPC Agreement 59

II The Regime for the Allocation of Jurisdiction and for the Reciprocal Enforcement of Judgments 60

III The Brussels I Regulation (Recast) 61

IV The Preparatory Committee for the Entry into Force of the UPC Agreement and the Rules of Procedure 64

Conclusion 66

Appendices 68

I Regulation (EU) No 1257/2012 of the European Parliament and of the Council 69

II Council Regulation (EU) No 1260/2012 83

III Agreement on a Unified Patent Court 90

Index 145

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