Promoting Harmonisation Across the European Patent System Through Judicial Dialogue and Cooperation

Abstract

In order to promote harmonisation in a more effective manner in the European patent system, it is argued that this should not solely be done through legislation, but through judicial dialogue and cooperation. Through this means of informal harmonisation, progress can be made case-by-case, rather than waiting for legislation to be agreed upon and entered into force. This is already happening to good effect, as displayed through a number of examples, including the most recent example of Actavis v. Eli Lilly [2017] UKSC 48 in the UK Supreme Court. It is proposed by this article that official lines of communication should be opened among all judiciaries and Boards in the European patent system to improve this practice. Judicial cooperation would also be useful to the Unified Patent Court, if it becomes operational. Opening official lines of communication would be an important step towards a further harmonised European patent system and would increase legal certainty in this area.

The Judicial Geography of Patent Litigation in Germany: Implications for the Institutionalization of the European Unified Patent Court

“…Therefore, at best, the problem of divergence should be addressed through a combination of different remedies, also beyond the appellate process. Amendments to law aimed at minimizing the scope of interpretation are one such means of providing better guidance to national judges in interpreting the scope of patents (Walsh 2019). The adoption of entirely new laws may also attempt to mitigate heterogeneous judicial practice.…”

“…An obvious example is the adoption of the EU Directive on the enforcement of intellectual property rights in 2004 (European Union 2004; Mejer and van Pottelsberghe de la Potterie 2011). Beyond legislative mechanisms, actor-oriented tools to achieve homogeneity can include legal internships and training (Walsh 2019;Khuchua 2019). In preparation of its launch in June 2023, the UPC has organized several training sessions for the judges, with the most recent event held in Budapest in January 2023.…”

Análisis educacional sobre la protección jurídica de las invenciones en la Unión Europea: pasado y presente

“…Thus, the EU's jurisdiction, which is external to the Community patent, would be transferred to the domestic jurisdiction. As such, it was feared that the introduction of a Community patent would only increase legal uncertainty (Walsh, 2019) (Fig. 4).…”