Effects of an inclusion of regulations concerning the content and limits of the patent holder's rights to prohibit in an EU regulation for the creation of unitary European patent protection, by Prof. Dr. Rudolf Kraßer, Munich University of Technology, Max Planck Institute
* Now inlcuding an English translation*
The Opinion examines whether the inclusion of substantive patent law provisions into the Regulation for the creation of a Unitary Patent is favourable or rather disadvantageous. Prof Kraßer comes to the conclusions that in view of the fact that the United Court is obliged under Art. 267 TFEU to submit questions of interpretation of EU legal acts, all legal concepts which describe a form of infringement like making, offering, placing on the market or using a product …, altogether several dozens which constitute core subjects of every litigation action. For most of them exist an unlimited number if national decisions whose evaluation often entirely depends on the underlying technical facts and their (correct) understanding in the given case. Prof. Kraßer demonstrates that these rules which have been derived from the text of the former Communuity Patent Convention (which has never entered into force but has been incorporated into most national laws) were not intended to become part of the Community law under this Convention and therefore had never been intended to become subject to referrals to the CJ.
Examples of how courts have to approach these concepts suppport his conclusion that an “important share” of the cases litigated before the divisions of the United Court would be subject to referrals for preliminary ruling by the CJEU and result in delay, higher cost and workload for all parties and “severely counteract to the goals of the project of enhanced cooperation”. Leaving these rules in the Regulation would therefore also “run contrary to the objectives of a speedy and efficient enforcement of protected industrial property rights”.
Read the entire opinion (in English) here.