European patent with unitary effect – the legal construct and content

Abstract

This paper presents legal regulations aimed to create unitary patent protection envisaged in Regulation (EU) No 12572012 of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection, and Council Regulation (EU) No 1260 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements. Since both regulations are closely connected with the Agreement on a Unified Patent Court, the latter will also be discussed. After a brief presentation of the current state of affairs in individual EU Member States regarding patent protection under European patents and national patents regulations, the legal construct of a European patent with unitary effect adopted in Regulation No 1257 2012 is analysed, with subsequent analysis of the content of the rights conferred by to European patents with unitary effect (i.e. the right to prevent the direct use of the invention and the right to prevent the indirect use of the invention). The last part of the analysis covers limitations of the effects of a patent. It is emphasised that the provisions regulating both the content of the patent and its limitations will not only apply to European patents with unitary effect, but will extend to include the ‘classical’ European patents as well. A critical opinion of the three legal acts is formulated. It is argued that once Poland ratifies the Agreement on a Unified Patent Court, European patents with unitary effect will come into force in Poland, and this will result in highly undesirable legal and economic consequences, and be particularly disadvantageous for small and medium-sized enterprises. Further, handing over jurisdiction over patent-related matters to the Unified Patent Court will also bring negative consequences and, what is more, there are serious reasons to believe that doing so would be contrary to Poland’s Constitution.