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The co-existence between EPC and patents with unitary effect

Mimler, M. ORCID: 0000-0002-9457-2506 (2023). The co-existence between EPC and patents with unitary effect. In: Matthews, D. & Torremans, P. (Eds.), European Patent Law. (pp. 449-462). Berlin, Germany: De Gruyter. doi: 10.1515/9783110781687-027


After decades of futile attempts to establish a comprehensive European patent framework, we will soon see the granting of European Patents with unitary effect (UPs) by the European Patent Office (EPO). For some this represents a giant and long-awaited leap forward for the European patent system: After over 70 years of trials and tribulations, UPs will provide another option for patent protection in Europe which are litigated before a common court, the Unified Patent Court (UPC). For many others, the system will be a disappointment as it showcases what might have been achievable. Many concerns have been raised outlining the short fallings of the UP system which would rather constitute a “step back” rather than forward. Among the various points which have been brought forward are the rules on co-existence of UPs and other European, aka classical European bundle patents. Co-existence of IP rights, in particular within the European framework, is not something uncommon. Such co-existence of IP rights on EU and on national level can be seen in relation to the law of trade marks and that of design rights.

With regards to the rules of co-existence presented within this chapter, the devil, as so often, lies in the details. Rather than ending the decade long fragmentation of patent law in Europe, the new system may add to its complexity by providing additional layers of fragmentation. The setup of the system born out of a compromise will lead to complex rules of applicability with regard to co-existence between the various layers of co-existence of UPs and other European patents as well as to their adjudication: Their co-existence basically hinges on the question whether the new UPC will have competence to adjudicate these or not. Finally, national patents are also part of the mix as they will remain available under the new system. This chapter will first trace the historical reasons that have led to the rules of co-existence. It will then outline the occurrence and features of the co-existence of UPs and European patents as well as their rules on adjudication and will then conclude by raising some critical points for the current and future debate.

Publication Type: Book Section
Departments: The City Law School
The City Law School > Academic Programmes
SWORD Depositor:
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