The patent regulation regime in Europe is the strongly harmonized due to the EPC, which incorporates substantive and procedural rules that apply to ‘European patents’. However, European patents operate in parallel with national patents. This has resulted in fragmentation because of the application of different national laws and a lack of cross-border enforcement. To address the drawbacks of the system, the EU adopted the Unitary Patent Package (UPP) in 2012. Part of the package is Regulation 1257, which creates a “European patents with unitary effect,” that grants uniform protection across all participating EU countries. It is believed that this will make patent protection in Europe more efficient and cost effective and will increase legal certainty.
The research project, which is part of a doctoral dissertation on patent harmonization in Africa, analyzes the nature of harmonization under both EPC and UPP. It focuses on the legislative mechanisms applied in both instruments to ensure a proper balance between domestic policy space and supranational rule making. Under the EPC, the contracting parties retain a certain autonomy in the grant of patents and enforcement actions. Once the examination is completed, the applicant chooses the countries where she wishes to validate the patent and then obtains individual patents for each of these countries. Hence, the EPC system is a bundle of national rights as the only fully harmonized aspect of it is the centralized application procedure. The UPP intends to address such fragmentation through unitary patents. The Unitary Patent Court (UPC) provides for uniform interpretation and centralized litigation over unitary and European patents.
While the nature of integration in Europe and Africa is different, the project finds that fundamental aspects of the patent governance regime in Europe can be duplicated in the context of the AfCFTA. Specifically, the flexible approach that the EPC adopted can be more conducive given the intergovernmental nature of the AfCFTA.
