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THE EUROPEAN PATENT: AN OLD AND VEXING PROBLEM

Published online by Cambridge University Press:  31 October 2013

Justine Pila
Justine Pila*
Affiliation:
Fellow of St. Catherine's College, University Lecturer in Intellectual Property Law, and Research Fellow of the Institute of European and Comparative Law at the University of Oxford, [email protected].
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Abstract

In December 2012, the European Parliament supported the creation of a European patent with unitary effect. For the next year at least, the international patent community will be on the edge of its proverbial seat, waiting to see whether the proposal becomes a reality. If it does, it will be a significant event in both the long and rich history of patent law, and in the equally rich and understudied history of attempts to create a European patent system. In this article I consider the three post-war European patent initiatives of the most direct and enduring relevance in that regard with a view to answering the following questions. First, what drove them? Second, what issues confronted them? And third, how were those issues resolved and with what ultimate effect? In the concluding section I relate the discussion back to the present by offering some remarks on the current European patent proposal in light of the same.

Keywords

Europeharmonizationhistorypatentsunification
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 4 , October 2013 , pp. 917 - 940
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 See Regulation (EU) 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection; Regulation (EU) 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements; Agreement on a Unified Patent Court, EU doc 16351/12 (11 January 2013) (UPC Agreement). On the proposal and its background see Ullrich, H, ‘Harmonizing Patent Law: The Untamable Union Patent’ in Janssens, M-C and Overwalle, G v (eds), Harmonisation of European IP Law: From European Rules to Belgian Law and Practice; Contributions in Honour of Frank Gotzen (Bruylant/Larcier 2012) 243–94Google Scholar; Peers, S, ‘The Constitutional Implications of the EU Patent’ (2011) 7 EuConst 229–66Google Scholar.

2 The unitary patent system will apply ‘from 1 January 2014 or the date of entry into force of the [UPC Agreement], whichever is the later’: Regulation (EU) 1257/2012 art 18(2).

3 Recent studies include Kranakis, E, ‘Patents and Power: European Patent-System Integration in the Context of Globalisation’ (2007) 48 Technology & Culture 689–728CrossRefGoogle Scholar; Wadlow, C, ‘Strasbourg, the Forgotten Patent Convention, and the Origins of the European Patents Jurisdiction’ (2010) 2 IIC 123–48Google Scholar. Earlier studies include Spencer, R, ‘A European Patent: An Old and Vexing Problem’ (1959) 45 ABAJ 1157–9Google Scholar; Spencer, R, ‘A European Patent: A New Solution to an Old and Vexing Problem’ (1962) 48 ABAJ 747–51Google Scholar; Neumeyer, F, ‘Unification of European Patent Legislation on the Common Market’ (1961) 24 MLR 725–37CrossRefGoogle Scholar; ‘The Proposed European Patent Law: A Summary Analysis’ (1963) 45 JPOS 153–81; von Holstein, P, ‘International Cooperation in the Field of Patent Law with Special Reference to the Activities of the Council of Europe’ (1967) 16 ICLQ 191–206CrossRefGoogle Scholar; Baillie, IC, ‘Where Goes Europe? The European Patent’ (1976) 58 JPOS 153–85Google Scholar; Newman, RC, ‘Progress Toward a European Patent’ (1972) NYUJIntL&Pol 449–84Google Scholar.

4 Spencer, R., ‘A European Patent: An Old and Vexing Problem’ (1959) 45 ABAJ 1157–9Google Scholar.

5 With a view to unifying the systems of patent protection in the countries we today call Belgium, the Netherlands, and parts of Italy; see Neumeyer (n 3) 725–6.

6 As a result of this parameter, German proposals for a European patent published in the early 1940s are also excluded.

7 Convention on the Unification of Certain Points of Substantive Law on Patents for Inventions (Strasbourg, 27 November 1963) ETS 47.

8 Convention for the European Patent for the Common Market 76/76/EEC (Luxembourg, 15 December 1975); Agreement relating to Community patents 89/695/EEC (Luxembourg, 15 December 1989) OJ L 401/1 (30 December 1989). By article 1(4) of the 1989 Agreement, it was to replace the 1975 Convention upon taking effect.

9 Convention on the Grant of European Patents (Munich, 5 October 1973) 13 ILM 268.

10 See Smits, J and Bull, W, ‘The Europeanisation of Patent Law: Towards a Competitive Model’ in Ohly, A and Pila, J (eds), The Europeanisation of Intellectual Property Law: Towards a European Legal Methodology (OUP 2013)Google Scholar ch 3.

11 See Finniss, G, ‘Will National Industrial Property Rights Disappear?’ (1961) Industrial Property 148–65, 161Google Scholar. The problem was more pronounced at the international level; see Harbers, MJ, ‘Recent Developments: International Patent Cooperation’ (1968) 20 StanLRev 1000–29, 1004Google Scholar.

12 See H von der Groeben, Competition in the Common Market: Speech made by M von der Groeben during the debate on the draft regulation pursuant to arts 85 and 86 of the EEC Treaty in the European Parliament—19 October 1961 (EEC Commission 1961) 8; also Dienner, JA, ‘Patents and Nationalism: A Patent Lawyer Looks at the Problem of European Recovery’ (1950) 32 JPOS 615–28Google Scholar; McLachlan, DL and Swan, D, ‘Competition Policy in the Common Market’ (1963) 73 The Economic Journal 54–79, 54–6CrossRefGoogle Scholar.

13 And not only within Europe; see, eg, Dienner ibid; Laude, KE, ‘A Step Toward a European Patent: The Common Market Patent’ (1960) 42 JPOS 698–701Google Scholar; cf Ladas, SP, ‘Common Market Patent and Trademark Treaties Open or Closed’ (1961) 51 Trademark Reporter 1203–8Google Scholar.

14 Finniss (n 11) 154.

15 See Gambrell, JB, ‘Patents and Antitrust: An Integrated Approach in the European Economic Community’ (1965) 6 Boston College Law Review 541–60, 543Google Scholar.

16 See Finniss (n 11) 164; McLachlan and Swan (n 12) 55; Manson, LA, ‘The EEC Patent Union and Political Integration’ (1973) 12 ColumbJTransnatlL 342–58Google Scholar; also Robbins, LJ, ‘The Proposed New European Patent’ (1961–62) 5 PTC J Res & Ed 217–32, 220Google Scholar.

17 See Misa, TJ and Schot, J, ‘Inventing Europe: Technology and the Hidden Integration of Europe’ (2005) 21 History & Technology 1–19, 13CrossRefGoogle Scholar; also Tuttle, JF, ‘Patent Policies of the European Atomic Energy Community’ (1968–69) 30 UPittLRev 331–69Google Scholar; Froschmaier, F [General Directorate of Competition of the European Commission], ‘The Draft Convention on Patents in the Common Market’ (1962) ICLQ Supp 4, 50–59Google Scholar, 59; Keeton, GW, ‘The Zollverein and the Common Market’ (1963) CLP 1–16, 16Google Scholar. On the concept of ‘functional federalism’ itself see Schwarzenberger, G, ‘Federalism and Supranationalism in the European Communities’ (1963) CLP 17–33Google Scholar.

18 See Finniss (n 11) 156–9; Westerman, GF, ‘A Common Patent in the Common Market’ (1962) 44 JPOS 444–61, 446–7Google Scholar; Federico, PJ, ‘The European Patent Concept’ (1974) 16 PTC J Res & Ed 33–43, 43Google Scholar. On the Zollverein and the Common Market generally see Kohr, L, ‘The History of the Common Market’ (1960) 20 JEH 441–54CrossRefGoogle Scholar; Keeton ibid; Roussakis, EN, ‘The Common Market and the Zollverein: Experiences in Integration’ (1969) 35 Louvain Economic Review 201–8Google Scholar; WO Henderson, ‘The German Zollverein and the European Economic Community’ (1981) J Institutional & Theoretical Economics (Economic Reconstruction in Europe: The Reintegration of Western Germany: A Symposium (September 1981)) 491–507.

19 See Neumeyer (n 3) 729.

20 See Froschmaier, F, ‘Some Aspects of the Draft Convention Relating to a European Patent Law’ (1963) 12 ICLQ 886–97CrossRefGoogle Scholar, 888. That patent territoriality would need to be abolished in order to realize the Single Market was a widely held belief in the 1960s, including outside the EEC; see, eg, Thompson, D, ‘Restrictive Practices, Patents and Trade Marks in the Common Market’ (1962) 11 ICLQ 594–6CrossRefGoogle Scholar, 595; Gambrell (n 15).

21 (Washington, 19 June 1970) 28 UST 7645.

22 The differences between the substantive patent laws of European states were extensive, and included the substantive criteria for a patent grant, the range of subject matter excluded from protection, the definition and standard of novelty required, the procedure for obtaining a patent, the method of determining the scope of protection, the scope of protection for product patents, the content of the patent rights and the period for which they existed, the allocation of rights in respect of employee inventions, and the limits on the rights of patentees to exploit their patent grants.

23 See Vojacek, J, ‘The Changing Face of Patent Law’ (1948) 30 JPOS 407–14Google Scholar, 408 (noting that ‘technical literature [in Europe] has been increasing at such an alarming rate—at least 300,000 new printed patent specifications every year, apart from thousands of technical reviews and books’, increasing the difficulty of conducting patent examinations and ensuring their reliability).

24 cf Meller, MN, ‘Toward a Multinational Patent System’ (1962) 44 JPOS 227–71Google Scholar, 233.

25 This model was first proposed by M Longchambon in 1949 adopting the French model of a registration patent, and by Professor Reimer in 1953 adopting the German model of a post-examination grant. On the Reimer plan see Wadlow (n 3).

26 This model was first proposed by Dr de Haan (Netherlands) in response to Dr Reimer's proposals in 1954. For a discussion see Wadlow (n 3).

27 The original members of the Council of Europe were Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden, the UK, Greece, Turkey, Iceland, Germany and Austria. Iceland and Germany joined in 1950, and Austria in 1956. By 1963 (when the SPC was signed) Cyprus (1961) and Switzerland (1963) had also joined.

28 The Council of Europe's approach has been fairly presented as both measured and respectful of national sovereignty; see Weiser, GJ and Behrman, JN, ‘The Convention for European Industrial Property Rights’ (1961–2) 5 PTC J Res & Ed 233–49Google Scholar.

29 See SPC art 4.

30 See SPC arts 1 and 2. The SPC's expansive conception of protectable subject matter was especially contentious, and was the reason for its boycott by Austria.

31 See SPC art 8 (‘1. The patent application shall contain a description of the invention with the necessary drawings referred to therein and one or more claims defining the protection applied for. 2. The description must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. 3. The extent of the protection conferred by the patent shall be determined by the terms of the claims. Nevertheless, the description and drawings shall be used to interpret the claims.’)

32 This experience derived from the Council's earlier conclusion of two patent conventions: the European Convention Relating to the Formalities Required for Patent Applications (Paris, 11 December 1953) ETS 16, and the European Convention on the International Classification of Patents for Inventions (Paris, 19 December 1954) ETS 17. For a discussion see Delvalle Goldsmith, S and Burnside, M, ‘Harmonization of European Patent Laws’ (1964) 46 JPOS 48–61Google Scholar. For early accounts of the Council of Europe's role and work generally see Powell, GL, ‘The Council of Europe: The Latest Development in the Trend toward Closer Co-operation among the Western European States’ (1950) 3 ICLQ 164–96Google Scholar; Robertson, AH, ‘The Legal Work of the Council of Europe’ (1961) 10 ICLQ 143–66CrossRefGoogle Scholar.

33 Belgium, the Netherlands, Luxembourg, France, Germany and Italy.

34 See in this regard Weiser, GJ, ‘Patent and Antitrust Developments in the European Economic Community—A Sequel’ (1966–67) 10 PTC J Res & Ed 1–9Google Scholar, 5 (reporting the view among EEC and national officials that ‘countries like Britain, Ireland, Austria, Sweden, Switzerland, and Norway cannot contribute to the fundamental decisions involved in establishing the [CPC] and to the functioning of the system itself since they lack the basic economic and political community of interest that brought and keeps the six members of the EEC together’, and that ‘these countries are really not politically ready or willing to surrender enough national sovereignty to the supra-national institutions that would be required for participation in the [CPC].’)

35 The trigger for the EEC patent initiative was the so-called Groeben plan of 1959 concerning industrial property rights prepared by European Commissioner Hans von der Groeben. For a discussion see Neumeyer (n 3) 728.

36 See, eg, the 1960 report of Germany Ministry of Justice official Kurt Haertel, commissioned by von der Groeben (and discussed in Robbins (n 16) 221–4). That the EEC patent would need to be supported by a system of courts exercising federal jurisdiction was widely assumed from the outset; see, eg, Froschmaier (n 20) 895–6; the comments of Tookey, GW as reported in ‘Current Developments in Industrial Property Rights in Great Britain’ (1962–63) 6 PTC J Res & Ed 453–76Google Scholar, 461.

37 cf Tracy, AR, ‘A Visit to the British, French, and German Patent Offices’ (1936) 18 JPOS 208–14Google Scholar; Harbers (n 11) 1002–4. On the origins of examination in German patent law see Pohlmann, J, ‘The Inventor's Right in Early German Law: Material of the Time from 1531 to 1700’ (1961) 43 JPOS 121–37Google Scholar. The French system was reformed in the 1960s; see Hiance, M and Plasseraud, Y, ‘The New French Patent Law’ (1968) 50 JPOS 209–13Google Scholar.

38 This view had already been taken in the Haertel report; see also Westerman (n 18) 457; Finniss (n 11) 162. One issue which co-existing systems gave rise to was the simultaneous protection of inventions by national and Community patents, which remained a difficulty until the end; see General Secretariat of the Council of the European Communities, Records of the Luxembourg Conference on the Community Patent 1975 (Office for Official Publications of the European Communities 1982)Google Scholar (CPC travaux) paras 248–50.

39 See Finniss (n 11) 162. This was also the view taken in the Haertel report. Indeed, even the proposals published in Germany in the early 1940s envisaged states retaining responsibility for the issuance of compulsory licences, and perhaps also the nullification of patent grants, in order to protect national economies, and as envisaged by art 5(2) of the Paris Convention for the Protection of Industrial Property (Paris, 20 March 1883, 13 UST 1) (Paris Convention). Early on in its work, the Council of Europe had also recognized compulsory licensing as a primary means by which states could (and would want to) offset the effects of a harmonized system on their national economies. See further n 58.

40 For an overview see Lloyd, RG, ‘The Protection of Industrial Property and the Common Market’ (1963) CLP 123–37, 130–7Google Scholar.

41 For example, France supported a ‘natural rights’ view of patent monopolies which required that they be made available as of right, and not subject to denial or limitation by the executive or an administrative official. See Kranakis (n 3) 703; Greenblum, N and Netter, A, ‘The French Patent and the European System’ (1977) 59 JPOS 573–99Google Scholar, 575. For a comparison of the US and European patent philosophies see Dienner (n 12); Kronstein, H and Till, I, ‘A Reevaluation of the International Patent Convention’ (1947) 12 Law & Contemporary Problems 765–81CrossRefGoogle Scholar. On other differences between the post-war patent systems of US and Europe see Ostenfeld, T, ‘Problems of European Patent Protection’ (1952) 34 JPOS 739–55Google Scholar; also Harris, LJ, ‘The First Modern Common Market: A Reinterpretation of the [British] Commonwealth Experience in Industrial Property’ (1962–63) 6 PTC J Res & Ed 199–223Google Scholar.

42 For example, in the early 1960s the International Labour Organization was reportedly considering the issue of employee inventions (see Lloyd (n 40) 131). Compare the early ambivalence regarding the boundaries of patent and competition law, discussed below.

43 The provisions in the Treaty of Rome concerning industrial property, in conjunction with its provisions on freedom of movement and competition, created an ambiguity regarding EC competence in patent law; cf, eg, arts 36 and 222 (envisaging national regulation of industrial property and territorial restrictions on patent exploitation) with arts 85 and 86 (providing the basis for a competition regime effective within the Common Market). That ambiguity can be read as underpinning a philosophical ambivalence at the heart of the early European project itself, on which see further below; Baillie (n 3) 153; Klotz, M, ‘A Great Opportunity Lost? The New Draft Relating to a European Patent Law’ (1963) 45 JPOS 416–19Google Scholar, 417; but cf n 20. For a discussion of some of the European and US constitutional issues created by the EEC project see Meller (n 24).

44 cf Froschmaier (n 20) 892.

45 As remarked by the Chairman of the Board of Trade Advisory Group on the proposals of Common Market countries regarding a European patent system, GW Tookey, the EEC initiative was in its early years ‘a private party’, and like many such parties was surrounded in secrecy. See ‘Current Developments in Industrial Property Rights in Great Britain’ (n 36) 460.

46 See generally Weiser, GJ, ‘Patent and Antitrust Development and Prospects of the European Economic Community’ (1964–65) 8 PTC J Res & Ed 1–20Google Scholar (reporting on interviews with officials involved in the EEC patent initiative); Weiser (n 34).

47 For a general discussion see Meller (n 24); Froschmaier (n 20).

48 See, eg, Weiser (n 34) 5 (noting the desire of the Netherlands to wait for UK participation in the EEC project so as ‘to correct the balance of industrial and political powers which often leaves that country isolated from the Franco-German industrial group’).

49 See generally Meller (n 24); Froschmaier (n 20). That European industry might be dominated by foreign patentees was contested by some commentators; see, eg, Maier, HG, ‘A New Look at the European Patent: Limited Availability’ (1966) 19 VandLRev 257–83Google Scholar, 278–82 (arguing that of the three reasons for seeking patent protection in foreign countries—to protect patented products exported into the country; to protect products manufactured in the country by a branch or subsidiary of the applicant; and to serve as the basis for a licence allowing a national to make or exploit the product—only the first would be relevant in the case of the unitary patent, and it was insufficient to support the exclusion of foreign nationals). On the threat of domination and small and medium-sized European enterprises particularly see Robbins, LJ, ‘The European Patent Convention: Some Present Viewpoints of the European Patent Profession’ (1963) 45 JPOS 295–307Google Scholar, 303–4. The impact of the CPC on small and medium-sized enterprises was of especial concern, particularly given the expectation that national patent systems would become less efficient as a result of ‘a swing … to the federal system’ among EEC countries. See ‘Current Developments in Industrial Property Rights in Great Britain’ (n 36) 461.

50 For typical responses see Ladas (n 13); Weiser and Behrman (n 28) 245–7; Frayne, GM, ‘The EEC (Common Market) Patent and the National Treatment Principles’ (1962) 52 Trademark Reporter 248–59Google Scholar; Bucknam, RE, ‘Access to the European Patent System’ (1963–64) 7 PTC J Res & Ed 427–30Google Scholar; Weiser, GJ, ‘The European Common Market Patent Convention: The Right to Apply for a Common Market Patent’ (1962–63) 6 PTC J Res & Ed 317–26Google Scholar; Maier ibid. US attention to this issue was partly a matter of timing; the EEC Six's work coinciding with a demand for greater US participation in the international industrial property scene (see Ladd, DL, ‘The Patent Plans of the Common Market Countries’ (1962) 44 JPOS 583–91Google Scholar, 590).

51 Among other things, the period from 1964 to 1969 saw important developments in principles of EC competition law, including C–24/67 Parke, Davis & Co v Probel [1968] ECR 55 (deciding that while patents are not per se abusive of EC competition principles, their use may be, and must therefore be scrutinized for compliance with the same).

52 For a discussion see Newman (n 3) 479–80. On the background to the PCT initiative see Ladas, S, Patents, Trademarks, and Related Rights (Harvard University Press 1975) 563–4Google Scholar.

53 See Ladas ibid 633.

54 See Kranakis (n 3) 706–7; Ladas (n 52) 634.

55 See Kranakis (n 3) 703.

56 cf Froschmaier (n 17) 58. The introduction of ‘deferred examination’ was widely foreseen (see, eg, Laude (n 13)), and was proposed by a US commentator in the mid-1960s as a model for modernizing the US patent system (see Duncan, JR, ‘The European Patent Convention as a Guide to Modernizing Our Patent Examining System’ (1964–65) 8 PTC J Res & Ed 405–42Google Scholar).

57 See art 2(2) (regarding the effect of a European patent), art 138 (regarding the grounds for revocation of a European patent), art 167 (regarding the reservations permitted to the EPC standards). On the ‘maximal’ approach generally see Pila, J, ‘Article 53(b) EPC: A Challenge to the Novartis Theory of European Patent History’ (2009) 72 MLR 412–62CrossRefGoogle Scholar, 446.

58 This was felt to be particularly important given the envisaged support for product patents. See, eg, Weiser (n 34) 2; also Deringer, A, ‘Towards European and EEC Patents’ (1971) 16 Antitrust Bulletin 151–63Google Scholar.

59 Inter-Governmental Conference for the Setting up of a European System for the Grant of Patents doc BR/7/69 (29 July 1969) 20.

60 Inter-Governmental Conference for the Setting up of a European System for the Grant of Patents doc BR/177/72 (13 April 1972) 14.

61 Inter-Governmental Conference for the Setting up of a European System for the Grant of Patents doc BR/144/71 (16 December 1971) 18–19.

62 ibid.

63 See EPC art 60(1); CPC art 69(4).

64 EPC art 64(1), (3).

65 EPC art 64(2).

66 See Munich Diplomatic Conference for the Setting up of a European System for the Grant of Patents doc M/67/I (11 September 1973).

67 Munich Diplomatic Conference for the Setting up of a European System for the Grant of Patents doc M/148/G (1 October 1973) 7.

68 CPC art 75(2).

69 See CPC arts 29 and 30 (prohibition of direct and indirect use of the invention) and art 31 (limitation of the effects of the Community patent).

70 See CPC art 36.

71 ibid. Jurisdiction lay with the courts of the contracting state in which (a) the defendant had his residence or an establishment, the plaintiff had his residence or an establishment, or failing that, with the courts of Germany; and (b) the act of infringement was committed. In the case of (a) jurisdiction extended to acts committed within the territory of any of the contracting states, whereas in the case of (b) it was confined to acts committed within the territory of that state.

72 CPC travaux para 456.

73 CPC art 76.

74 CPC art 77(2).

75 CPC art 78(1).

76 CPC art 78(2).

77 CPC art 78(3).

78 See CPC art 44.

79 CPC art 43(1); CPC travaux para 63; see also CPC art 43(2) and CPC travaux paras 68–9.

80 CPC arts 32 (Community patents) and 81(1) (national patents). See also CPC arts 81(2) and 81(3), through which the States sought to achieve a degree of legal certainty while also limiting the risk of ‘adopting a provision which might be declared incompatible with the EEC Treaty’: CPC travaux para 390.

81 CPC art 46(4). At the 1975 CPC Conference the Chairman noted, at the request of the UK delegation, the Committee of the Whole's agreement that the ‘right to use patented invention in the public interest’ included the right of a government to use a patented invention or to approve such use; with the French delegation also recording its broad understanding of the provision (see below).

82 CPC art 46.

83 See CPC arts 47 and 82. On their background see Deringer (n 58) 161–2.

84 For an early critique of the emphasis placed on competition by von der Groeben and the Commission generally, including its implications for monopolies, see van Meerhaegh, AGe, ‘The Purpose of Competition Policy: A Critical Essay on the EEC's Views’ (1967) 27 Journal of Economics 425–38Google Scholar.

85 CPC travaux para 207.

86 See n 43.

87 C–78/70 Deutsche Grammophon v Metro [1971] ECR 487, [11].

88 C–15/74 Centrafarm v Sterling Drug [1974] ECR 1147, [10]–[11].

89 cf Jacobs, FG, ‘Industrial Property and the EEC Treaty: A Reply’ (1975) 24 ICLQ 643–58CrossRefGoogle Scholar, 657–8.

90 See C–128/11 UsedSoft GmbH v Oracle International Corp [2012] 3 CMLR 44 (deciding that the exhaustion doctrine applies to all ‘transfers of ownership’ for payment, including transfers of ownership effected by the provision of a digital copy of copyright-protected software).

91 See CPC arts 47, 82.

92 CPC travaux para 82.

93 CPC art 89.

94 See the Resolution of this name in Resolutions, Declarations and Decision Annexed to the Final Act of the CPC.

95 CPC travaux para 289. Whether the grant of a compulsory licence in respect of a national patent would be regarded as exhausting the patent for the entire Community was considered and answered in the negative, consistent with the later decision of the Court of Justice in C–19/84 Pharmon v Hoechst [1985] ECR 2281.

96 CPC travaux para 68.

97 As expressed in its Preamble, the EPC sought ‘to strengthen co-operation between the States of Europe in respect of the protection of inventions’.

98 In contrast to Boards (with technically and legally qualified members) to hear appeals from the EPO's examining, opposition and other administrative offices, including an Enlarged Board to decide or give opinions on questions of law referred by the Boards or EPO President, and decide on petitions for review of a decision by a Board (see EPC arts 21 and 22).

99 The CPC was from the outset proposed to operate on a trilingual (German, French and English) basis; the inclusion of English presumably on the basis of its envisaged access by non-EEC states. According to Robbins (n 49) 305–6, the exclusion of Dutch and Italian was regarded by some as problematic.

100 CPC art 33(1).

101 CPC arts 14(8) and (9).

102 CPC art 177.

103 See Krieger, A, ‘The Luxembourg Convention on the Community Patent: A Challenge and a Duty’ (1988) 19 IIC 143–57Google Scholar, 145.

104 See Langballe, PO, ‘International Patent Systems: Aims, Principles, Means’ (1970–71) 14 PTC J Res & Ed 139–44Google Scholar, 141 (‘[I]t cannot—and should not—be concealed that strong national interests are closely associated with the means envisaged for the operation of the proposed system.’)

105 The SPC, EPC and CPC were all pursued as special agreements under the Paris Convention. The SPC required eight ratifications to enter into force which—as ratifications required substantial amendment of national laws—took 17 years to secure. The EPC required ratification by six states which had among them 180,000 patent applications filed in 1970, which took four years. On the constitutional difficulties faced by Ireland in particular regarding the CPC see CPC travaux paras 483–6; Krieger (n 103) 145–6.

106 See Baillie (n 3) 170.

107 See ibid 177. The description of the system as ‘Wagnerian’ is from Federico (n 18) 43.

108 On the likely economic impact of the European patent conventions see Manson (n 18); cf Newman (n 3) 481–3. On their importance as tools of integration cf Newman (n 3) 483; Maier (n 49) 277–8 (discussing the inadequacy of the Koch-Froschmaier principles of exhaustion (on which see Koch, N and Froschmaier, F, ‘The Doctrine of Territoriality in Patent Law and the European Common Market’ (1965–66) 9 PTC J Res & Ed 343–60Google Scholar) as a solution to the European patent problem). To some extent the disagreement over the latter issue reflects a disagreement over whether European integration requires the removal of obstacles to cross-border activities on the one hand or the creation of unified systems and institutions on the other; a disagreement which is itself informed by the type of integration sought. See Smits and Bull (n 10) 6.

109 This ambivalence existed from the initiative's earliest days; see, eg, Robbins (n 49) 301–3.

110 Robbins (n 49) 303.

111 See Robbins (n 49).

112 See n 94.

113 ibid. See also the recitals to the 1989 Agreement.

114 For a discussion see Haardt, WL, ‘The Setting up of a Court of Appeal for Community Patents’ (1985) 3 IIC 332–40Google Scholar.

115 All nine original signatories to the CPC supported that, including Ireland and Denmark. See Krieger, A, ‘When Will the European Community Patent Finally Arrive?’ (1998) IIC 855–76Google Scholar.

116 See 1989 Agreement art 10.

117 See Krieger (n 115); Cruz, J, ‘The Community Patent Convention: What Sort of Future?’ (1998) J World Intellectual Property 819–26CrossRefGoogle Scholar.

118 The States in question are all 27 EU Member States excluding Spain and Italy. At the time of writing, all EU Member States excluding Poland and Spain have signed the UPC Agreement, including Italy. See <http://ec.europa.eu/internal_market/indprop/patent/ratification/index_en.htm>.

119 Finniss, G, ‘Industrial Property and the Common Market’ (1962) ICLQ Supp 4, 47–9, 48–9Google Scholar.

120 See Consolidated Version of the Treaty on the Functioning of the European Union OJ C 83/01 (30 March 2010) (TFEU) art 118 (providing that the European Parliament and Council ‘shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralized Union-wide authorization, coordination and supervision arrangements’, and the Council ‘shall by means of regulations establish language arrangements for the European intellectual property rights’ (emphasis added)).

121 See Regulation 1257/2012 art 3(2).

122 See UPC Agreement art 32 (giving the Unified Patent Court exclusive competence in respect of all European (EPC and unitary) patents and Supplementary Protection Certificates).

123 See Regulation (EU) 1257/2012 recitals (1), (4) and (19).

124 cf CPC art 2(1) (making the conversion of EPC patents into Community patents automatic).

125 See UPC Agreement arts 25 to 28; cf 1989 Agreement arts 25 to 27.

126 See Regulation (EU) 1257/2012 art 6 (exhaustion), art 3(2) (territorial licences) and art 8 (licences of right); cf 1989 Agreement arts 28, 42, 43.

127 See UPC Agreement art 32(3); cf 1989 Agreement art 73(2).

128 See Regulation (EU) 1257/2012 art 15 (competition and unfair competition law); cf 1989 Agreement art 2(1).

129 Aside from preserving national patents, the UPC Agreement art 24(1)(e) lists national law among the UPC's sources of law.

130 See UPC Agreement art 21; cf 1989 Agreement art 2(2) and (3).

131 In particular, there will be no general right of appeal from the Unified Patent Court to the CJEU, and, in the absence of a general EU patent law, no general jurisdiction for the CJEU in respect of substantive patent law.

132 Regulation (EU) 1257/2012 art 18(2).

133 See Consolidated Version of the Treaty on European Union, OJ C 83/13 (30 March 2010) (TEU) art 20, TFEU arts 326 to 334.

134 See Regulation 1260/2012 arts 3(1), 4; also UPC Agreement arts 49 to 51. It was Spain and Italy's rejection of these arrangements which triggered its original refusal to cooperate in the system and application for annulment of the 2011 Decision of the Council authorizing enhanced cooperation. See Joined Cases C–274/11 and C–295/11 Kingdom of Spain v Council of the European Union and Italian Republic v Council of the European Union (16 April 2013) (deciding, among other things, that the language arrangements ‘may not be described as prejudicial to the competences, rights or obligations’ of either State). Spain has two further actions against the Regulations themselves pending before the Court; Joined Cases C–146/13 and C–147/13.

135 Absent from the statement of those objections in Regulation 1257/2012 are the interest in using the creation of a supranational industrial property system as a means of pursuing political federation, and the fear of being left behind politically (contra technologically and economically) as a result of competing patent initiatives.

136 See n 120.

137 See n 133.

138 This is why the definition of the uniform protection conferred by the unitary patent was relocated from Regulation 1257/2012 to the UPC Agreement. See UPC Agreement arts 25 to 28; Regulation 1257/2012 art 5; also Wadlow, C, “Hamlet without the Prince”: Can the Unitary Patent Regulation strut its stuff without Articles 6–8?’ (2013) 8 JIPLP 207–12Google Scholar.

139 For a critique of the exclusivity of the UPC's jurisdiction see Smits and Bull (n 10) (arguing for a ‘competitive model of patent law’).

140 On the former see, eg, D Kitchin, ‘Congress dinner—October 2012: The Rt Hon Lord Justice Kitchin’ <http://www.cipa.org.uk/pages/Congres-Dinner-2012-Lord-Justice-Kitchin> (expressing the view that any system which results in references to the CJEU will be undesirable because, among other reasons, ‘the CJEU has no real patent expertise and its track record in IP cases does not inspire confidence’). The scepticism is long-standing; see, eg, Jacobs (n 89) 645.

141 Kitchin ibid.

142 See, eg, Max Planck Institute for Intellectual Property and Competition Law, ‘The Unitary Patent Package: Twelve Reasons for Concern’ (17 October 2012) <http://www.ip.mpg.de/en/pub/publications/opinions/unitary_patent_package.cfm>; Kitchin (n 138); B van Pottelsberghe, ‘The Unitary Patent: Challenges Still Ahead’ (17 December 2012) <http://www.bruegel.org/nc/blog/detail/article/969-the-unitary-patent-challenges-still-ahead/#.UR4EHBx1M3U>.

143 One is reminded of the views reported by Weiser in the mid-1960s; see n 34.

144 See, eg, Pila, J, ‘Dispute over the Meaning of ‘Invention’ in Art. 52(2) EPC: The Patentability of Computer-Implemented Inventions in Europe’ [2005] IIC 173–91Google Scholar, 189 (quoting the opening remarks of Commissioner Frits Bolkestein in the Plenary Debate on the European Parliament and Council's Proposal for a Directive on the patentability of computer-implemented inventions COM(2002) 92 final).

145 See J Pagenberg [former member of the Expert Committee of judges and attorneys engaged by the European Parliament to work on the project], ‘Open Letter to Herman van Rompuy, President of the European Council’ (31 May 2012) <http://www.eplawpatentblog.com/2012/June/Mail%2020to%2020Herman%2020Van%2020Rompuy%5B1%5D.pdf>; J Pagenberg, ‘The EU Patent Package: Politics vs. Quality and the New Practice of Secret Legislation in Brussels’ (June 2012) <http://www.eplawpatentblog.com/2012/June/Pagenberg%2020%2020EU%2020Patent%2020Court%5B1%5D.pdf>. The allegations of secrecy recall the methods of the Council of Europe, EEC Six and EPC States from the 1950s to 1970s, on which see, eg, n 45.

146 The protection of intellectual property is a fundamental right under the Charter of Fundamental Rights of the European Union, OJ C 364/1 (18 December 2000); see art 18(2).

147 The CJEU's use of fundamental rights to expand EU competence in particular has been a well-worn theme for over 20 years. See, eg, Coppel, J and O'Neill, A, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) Legal Studies 227CrossRefGoogle Scholar, 227. cf (in defence of the CJEU) Ward, I, ‘Making Sense of Integration: A Philosophy of Law for the European Community’ (1993) 12 J European Integration 101CrossRefGoogle Scholar.

148 See Weiler, JHH, ‘The Political and Legal Culture of European Integration: An Exploratory Essay’ (2011) 9 I–CON 678, 681Google Scholar.

149 ibid 682 ff; Weiler, JHH, ‘60 Years since the First European Community: Reflections on Messianism’ (2011) 22 EJIL 303Google Scholar.

150 They are not universally supported; see, eg, Eleftheriadis, P, ‘The Moral Distinctiveness of the European Union’ (2011) 9 I–CON 695Google Scholar; G de Búrca, ‘Europe's Raison d’être’ (2013) NYU School of Law, Public Law & Legal Theory Research Paper Series No 13/09 <http://ssrn.com/abstract=2224310>.

151 See, eg, IP Watch blog, ‘European Unitary Patent and Court Becomes Reality’ (11 December 2012) <http://www.ip-watch.org/2012/12/11/european-unitary-patent-and-court-becomes-reality/> (reporting the comments of Prime Minister David Cameron).

152 See, eg, Kitchin (n 140).

153 See de Búrca (n 150) 1.

154 See n 43.