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Europe and the Unitary Patent: Progress Towards Reshaping the European Patent Landscape

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Radcliffe, Bertie (2012) Europe and the Unitary Patent: Progress Towards Reshaping the European Patent Landscape. Global Policy Institute Policy Paper (22). pp. 2-15.

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Abstract

It is surprising that the European Union has failed to create a Unitary Patent which would fully liberalise the flow of ideas as the single market facilitated the flow of capital and people. This is apparent when one considers that the Treaty on the Functioning of the European Union explicitly mandates the Council and the Parliament of the EU to “establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements”. It is true that a European Patent has existed since 1973, but nomenclature should not be mistaken for reality. The European Patent Convention (EPC) in fact serves only to make the fragmentary nature of intellectual property law tolerable for those intent on seeking patent protection across the European Union. It does so outside of European Union mechanisms, which is made plain by the fact that several non-member states are signatories. More importantly, the EPC does not create anything which resembles a single patent title.

In light of this, recent attempts by the Commission and the Council of the EU to create a unitary patent are welcome. Recent patent disputes, both in Europe and across the Atlantic, have been hailed as a sign of inadequacies in the current system of patent application and protection.

The size of settlements and legal fees has led commentators, lawmakers and members of the judiciary to question whether the current approach is desirable from the point of the consumer or even sustainable. In particular, certain groups of patents are maligned, whether they are software or business method patents, or those owned by so-called patent trolls.

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