The Property Aspects of the European Patent with Unitary Effect: A National Perspective for a European Prospect?

Abstract

The exploitation of patents as an asset, which may be traded by way of assignment, licensing or as security, has become increasingly important. In this regard, Art. 7 of the new EU Regulation No. 1257/2012 of 17 December 2012 on unitary patent protection provides that, as an object of property, a European patent with unitary effect shall be treated in its entirety and in all participating Member States as a national patent of the participating Member State in which that patent has unitary effect and in which the applicant had her/his residence or principal place of business or, by default, had a place of business on the date of filing the application for the European patent. In case the applicant had no such form of domicile in a participating Member State, German law applies (Art. 7 (3)). The result of Art. 7 is that, whereas unitary patents held by owners having some domicile in participating Member States typically will be subject to the national law of the patentee, firms from non-participating Member States, which do not have some form of domicile within the territory of enhanced cooperation, will never have their national law applied to unitary patents covering their inventive achievements. The author submits that Art. 7 is in conflict with both the purpose of the creation of unitary patent protection and with primary EU law.

Keywords: European patent with unitary effect; unitary patents; patents as objects of property; markets for patents; EU law; TFEU; discrimination on grounds of nationality