We previously highlighted Dr Stjerna’s recent analysis of the unitary patent package (UPP) and the Spanish challenges. This time round it’s the term of Prof. Dr. Josef Drexl, the Director of the Max Planck Institute for Innovation and Competition, and the paper “The European Unitary Patent System: On the ‘Unconstitutional’ Misuse of Conflict-of-Law Rules” which can be accessed here. A very brief set of points arising in the Drexl paper is summarized below and the reader is encouraged to read the entire paper (that at 20 pages is a fairly quick read).

The paper by Drexl starts with an recap of the history behind the current unitary patent package from the Community Patent Convention of 1975, through the European Patent Litigation Agreement and the European and EU Patent Court to the current Regulations and Unified Patent Court Agreement. It’s an interesting journey though the various proposals and blind alleys to the present situation.

The recap ends by highlighting/reminding us of David Cameron’s intervention into the whole debate with his resistance to accept the CJEU’s jurisdiction over substantive law matters (the “Articles 6-8” issue).

The author then looks at the use of a conflict of law rule (Article 5(3) of the UPP regulation) that was inserted into the UPP regulation to limit the jurisdiction of the CJEU and asks why this conflict of law rule is used in the  regulation (where another option would have been to designate the UPC Agreement as the applicable law that defines the scope of protection of a unitary patent). This section of the paper concludes by wondering if the CJEU will accept the use of this rule in the Regulation when it is only used to exclude the Court’s jurisdiction.

Next up is whether the UPP violates the principle of democracy within the EU. Drexl notes that AG Bot in the Spanish challenge cases does not analyse matters any wider than the claims brought by Spain require but notes that there is a concern that the UPP violates this principle with AG Bot’s conclusion that there’s an obligation of participating member states to adhere to the UPCA. Drexl also notes that AG Bot stated that the UPP Regulation’s references to all international agreements “of which the Member States are parties” included the UPCA. However, the UPP Regulation was signed before the UPCA.

Drexl moves next to whether the UPP circumvents the principle of fundamental rights protection and expresses disappointment that this line of reasoning was not expanded upon by AG Bot.

In the final argument section the paper considers whether the UPC will develop a pro-patent bias without the influence of the CJEU to account for “broader societal implications of patent protection.” Reference is made in this section to the experiences in the US and the centralized Court of Appeals.

Drexl concludes the paper by expressing frustration with AG Bot’s opinions in the Spanish challenge. Going forward he notes that there are three options open to the CJEU when they consider the Spanish challenges – an endorsement of the Bot opinions, a rejection of the compatibility of the unitary patent regulations with EU treaties or some middle ground where the CJEU decides it is competent to answer questions on the interpretation of the UPCA.

Mark Richardson  9 February 2015