Il sistema di tutela brevettuale nell'Unione Europea: il Brevetto Europeo con effetto unitario e il Tribunale Unificato dei Brevetti

In 2012, after more than forty years of attempts aimed at creating a “Community” patent, the European Union adopted two regulations, which implement an enhanced cooperation between twenty-six EU Member States in the field of unitary patent protection. These are the regulation no. 1257/2012 and the regulation no. 1260/2012, creating a European patent with unitary effect and regulating its applicable translation arrangements. The following year, twenty-five Member States signed an international agreement establishing the Unified Patent Court. These two instruments compose the “Patent package”, which will entry into force once thirteen Contracting Member States (including France, Germany and the United Kingdom) ratify the Agreement. While the current scenario is characterized by regulatory and jurisdictional fragmentation, this new architecture will certainly bring several benefits. On the one hand, the European regulations introduce a new kind of patent, which extends its validity beyond the national borders. The scope of protection and the effect of the European patent with unitary effect will be uniform throughout the area of participating Member States. On the other hand, the Unified Patent Court will have jurisdiction over the European patent with unitary effect and over the “traditional” European patent, providing jurisdictional clarity and uniformity. However, the “patent package” does not seem to be consistent with the very object of the creation of unitary patent protection. In fact, the result achieved is a complex regulatory framework that combines the EU law, the international law (particularly, the Agreement on the Unified Patent Court and the European Patent Convention) and the national law of Member States, which the aforementioned acts refer to on several occasions. It also establishes the European patent with unitary effect and Unified Patent Court, which are instruments with a controversial nature. For this reason, the new legislation raises many “constitutional” issues regarding the compatibility of the new system with the legal order of the EU. Firstly, the enhanced cooperation seems to have been established only to circumvent the dissent of Italy and Spain in relation to the applicable language arrangements. Secondly, the European regulations have not any substantive patent law provisions, raising doubts about how unitary this new patent is. Thirdly, the are some features of the Unified Patent Court in conflict with the purpose of judicial unification and with the aim of ensuring a fair balance between the legitimate interests of all parties, such as its particular structure, the internal distribution of competences, the rules governing the languages and the transitional period, during which it is possible to bring proceedings before national Courts. In addition, the decision of the United Kingdom to leave the European Union could jeopardize the entry into force of the “patent package”. This research aims to conduct an in-depth analysis of the “Patent package”, in order to analyse its compatibility with the European Union system. Only through a systematic approach based on the EU principles and instruments it will be possible to overcome the current difficulties arising from this new patent system. Following this path, it will be possible to improve this new discipline in order to achieve real unity and coherency in patent protection.