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