Fragmentation and the European Patent System

This book provides an in-depth study on current perceptions of, and responses to, fragmentation in the European patent system (EPS). For decades, attempts have been made to address this fragmentation by introducing a unitary patent system. The most recent attempt, the EU unitary patent system, will be the first of its kind. It is expected to significantly change the EPS. However, rather than reducing existing fragmentation, it will likely add to it. Based on an analysis of the current and forthcoming systems, the book argues that the inherent nature of fragmentation within the EPS needs to be recognised and suggests that a multi-faceted approach is required to respond to it. Uniquely, it draws on work regarding fragmentation outside of the patent and intellectual property regimes, gaining insights from both European law-making and the international legal system. These insights are used to investigate current responses to fragmentation in the EPS. Interpretations of substantive patent law are examined, including claim construction (Actavis v Eli Lily), exceptions to patentability related to uses of human embryos for industrial or commercial purposes (WARF, Brüstle, ISCC) and products resulting from essentially biological processes (‘Tomatoes II’ and ‘Broccoli II’, G3/19). Attempts towards convergence in these areas have had mixed results and in some instances fragmentation may be necessary. However, similar techniques to those applied in the international legal system to respond to fragmentation are being used in the EPS, and, where this is seen, it has been to good effect. It is argued that these methods should be recognised, structured and promoted to make our response to fragmentation more effective. Fragmentation and the European Patent System will be of interest to academics, students and practitioners looking for a new perspective on the European patent system. This book provides an in-depth study on current perceptions of, and responses to, fragmentation in the European patent system (EPS). For decades, attempts have been made to address this fragmentation by introducing a unitary patent system. The most recent attempt, the EU unitary patent system, will be the first of its kind. It is expected to significantly change the EPS. However, rather than reducing existing fragmentation, it will likely add to it. Based on an analysis of the current and forthcoming system, the book argues that the inherent nature of fragmentation within the EPS needs to be recognised and suggests that a multifaceted approach is required to respond to it. Uniquely, it draws on work regarding fragmentation outside of the patent and intellectual property regimes, gaining insights from both European law-making and the international legal system. These insights are used to investigate current responses to fragmentation in the EPS. Interpretations of substantive patent law are examined, including claim construction ( Actavis v Eli Lily ), exceptions to patentability related to uses of human embryos for industrial or commercial purposes ( WARF, Brüstle, ISCC ), and products resulting from essentially biological processes ( Broccoli and Tomatoes II, G3/19 ). Attempts towards convergence in these areas have had mixed results and in some instances fragmentation may be necessary. However, similar techniques to those applied in the international legal system to respond to fragmentation are being used in the EPS, and, where this is seen, it has been to good effect. It is argued that these methods should be recognised, structured, and promoted to make our response to fragmentation more effective. Fragmentation and the European Patent System will be of interest to academics, students and practitioners looking for a new perspective on the EPS. Acknowledgements Contents Abbreviations Table of Cases Table of Legislation Introduction I. Background II. The European Patent System III. Terminology IV. Perspectives on Fragmentation V. Outline PART I: FRAGMENTATION AND THE EUROPEAN PATENT SYSTEM TODAY 1. Existing Routes to Patent Protection in Europe I. National Patent Systems II. The European (EPC) Patent System III. The International Patent Application IV. Existing Fragmentation 2. Forthcoming Route to EU Unitary Patent Protection I. Background to the Unitary Patent Package II. The Unitary Patent Package III. Concerns Related to the Unitary Patent Package IV. Further Fragmentation PART II: ALTERNATIVE PERCEPTIONS OF FRAGMENTATION 3. Fragmentation in European Law-Making I. Constructing Europe and the European Patent System II. The Impact of Expansion III. Fragmentation as a Means of Integration 4. Fragmentation in the International Legal System I. Fragmentation in the International Legal System II. Application to the European Patent System III. Fragmentation as an Inherent Aspect of a Legal System PART III: FRAGMENTATION AND SUBSTANTIVE PATENT LAW 5. Responding to Fragmentation as an Inherent Aspect of the European Patent System I. Areas of Divergence II. Towards Convergence – Judicial Dialogue and Cooperation III. Fragmentation as an Inherent Aspect of the European Patent System 6. Accepting Fragmentation as a Necessary Aspect of the European Patent System I. The Impact of the Biotech Directive II. Interpretations of the Exceptions to Patentability III. Impact of the Unitary Patent Package IV. Considering Diversity and Value Pluralism when Responding to Fragmentation Conclusion: Fragmentation and the European Patent System Bibliography Index This book provides an in-depth study on current perceptions of, and responses to, fragmentation in the European patent system (EPS). For decades, attempts have been made to address this fragmentation by introducing a unitary patent system. The most recent attempt, the EU unitary patent system, will be the first of its kind. It is expected to significantly change the EPS. However, rather than reducing existing fragmentation, it will likely add to it. Based on an analysis of the current and forthcoming system, the book argues that the inherent nature of fragmentation within the EPS needs to be recognised and suggests that a multifaceted approach is required to respond to it. Uniquely, it draws on work regarding fragmentation outside of the patent and intellectual property regimes, gaining insights from both European law-making and the international legal system. These insights are used to investigate current responses to fragmentation in the EPS. Interpretations of substantive patent law are examined, including claim construction (Actavis v Eli Lily), exceptions to patentability related to uses of human embryos for industrial or commercial purposes (WARF, Brustle, ISCC), and products resulting from essentially biological processes (Broccoli and Tomatoes II, G3/19). Attempts towards convergence in these areas have had mixed results and in some instances fragmentation may be necessary. However, similar techniques to those applied in the international legal system to respond to fragmentation are being used in the EPS, and, where this is seen, it has been to good effect. It is argued that these methods should be recognised, structured, and promoted to make our response to fragmentation more effective "The European patent system (EPS) is undoubtedly fragmented, which is generally seen as a negative aspect of the system that needs to be removed. This book questions that viewpoint and takes the unique perspective that fragmentation is in fact inherent in the EPS and can, in certain circumstances, be a positive feature. The starting point for questioning the negative attitude towards fragmentation must be the concept itself. Hence the aim of this book, which is to offer a theoretical analysis of fragmentation as a feature of supranational law-making and legal systems. It draws on jurisprudence from international law, in which fragmentation is inherent, and uses that analysis to propose alternative methods of harmonising the EPS, while ensuring national diversity. The book analyses case studies from the EPS, including case law on human embryonic stem cells ( WARF , Brèustle , ISCC ), the doctrine of equivalents ( Actavis v Eli Lily ), and the potential impact of Brexit. These are used to reflect on the way in which similar techniques to those used in the international legal system to respond to fragmentation are being used in the EPS, how effective they are, and where matters can be improved. This fascinating book will be of interest to academics, students and practitioners looking for a new perspective on the European patent system."-- Provided by publisher "This book examines current perceptions of, and responses to, fragmentation in the European patent system (EPS). For decades, attempts have been made to address this fragmentation by introducing a unitary patent system. Based on an analysis of the current and forthcoming system, the book argues that the inherent nature of fragmentation within the EPS needs to be recognised and suggests that a multifaceted approach is required to respond to it. It draws on work regarding fragmentation outside of the patent and intellectual property regimes, gaining insights from both European law-making and the international legal system. It investigates current responses to fragmentation in the EPS. Interpretations of substantive patent law are examined, including claim construction (Actavis v Eli Lily), exceptions to patentability related to uses of human embryos for industrial or commercial purposes (WARF, Brustle, ISCC), and products resulting from essentially biological processes (Broccoli and Tomatoes II, G3/19)"--Adapted from the publisher's description