Immaterialgüter- und Wettbewerbsrecht

Patent Law Harmonization in the EU Under the Jurisdiction of the Unified Court (Chances, Risks, Implications)

The project focuses on analysis whether the implementation of a new unitary patent regime with a specialized jurisdiction of the Unified Patent Court can ensure better harmonization of patent enforcement standards in the EU and what further reforms, if any, strengthening the new system are required.

Last Update: 12.11.18

The objective of the project was to investigate to what extent the implementation of the unitary patent with a centralized UPC jurisdiction can ensure the harmonization of the EU patent system and what further reforms can help in avoiding fragmentation of the patent litigation standards in the EU.

Within the project framework, attitudes and insufficiencies of the unitary patent have been identified with a general conclusion that the UE legislator missed rather than created a chance for any “unification” of the European patent system.

First, the true unitary effect of a new patent system has been questioned due to the fragmented territorial scope of a “unitary” patent not covering all EU Member States. Second, according to the project’s findings not enough effort has been made in providing clear rules in regard to the scope of unitary patent protection and the limitation of a unitary patent. Instead of providing its own rules aimed at eliminating existing uncertainties, the UPC Agreement refers to or repeats the provisions of the existing regulations under which national courts developed different standards. Thus the question remains open, whether the UPC will develop its own unified patent infringement standards or – because of fragmented jurisdiction of local and regional divisions possibly influenced by national practice possibly follow different approaches taken by national courts. Instead of the planned “top-down harmonization”, a reverse scenario is more possible which still can be successful, provided the quality and consistency of the judgments across all local, regional and central divisions is ensured by the development of clear guidelines to the interpretation of UPC provisions, transparent rules of the procedures, as well as development of judicial culture and judge craft among the judges of the UPC. Third, although the EC is recently taking efforts to resolve the a problematic issue of co-existence of unitary patents and the SPC, the idea of creation a unitary SPC extending the protection of a unitary patent - even that attractive – seems to be premature and difficult to implement. Even though the UPC Agreement provides legal basis for a unitary SPC, it lacks any guidelines for granting unitary SPCs. Implementation of a unitary SPC regime would, however, be difficult for a number of reasons (e.g. need for the establishment of an administrative body responsible for granting such SPCs, an appeal procedure, and a centralized valid marketing authorization). Another, easier option would be to continue national SPCs with a unitary patent as a “basic patent in force”.

In any scenario, once the unitary patent system comes into operation, at the beginning it will be an untested forum with many uncertainties, which hopefully will not destroy of the concept of a truly unitary EU patent system.

The results of the project is being used in a habilitation on patent infringement in Europe and in the article on the future reform of the SPC related to the unitary patent.



Justyna Ożegalska-Trybalska


Dr. Roberto Romandini

Main Areas of Research

II.5 Rechtsdurchsetzung und Streitbeilegung