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26

Mar

2020

Patent Cultures

Written by: Steven Wilf & Graeme Gooday

 
 

Has patent harmonization come to a standstill?  Just days ago, Britain reversed its decision to participate in the European Union’s new Unified Patent Court.  Why did it happen?  And what does this mean for technological innovation?

For nearly a century and a half, the watchword has been that law should foster innovation crossing borders.  The project of patent harmonization—the convergence of systems protecting new inventions and technological processes—seemed to be on a single trajectory.  Ever since the Paris Convention of 1883, European countries have led the way in reducing barriers to securing patents that would operate in different countries.  The idea was that formalities such as registration and duration, the standards for patent examination, and the remedies available in the case of infringement would be harmonized in different countries.

The dominant historical account describes harmonization as ever-growing with familiar milestones such as the Paris Convention, the 1967 founding of the World Intellectual Property Organization in Geneva (WIPO), establishing the European Patent Office in 1973, and the formation of current global institutions of patent governance.  Yet harmonization is a bit like a Fabergé egg—the more countries adopt common legal rules, the more they find that tucked into the next nested layer is a substantial difference.  Courts are constantly reinterpreting these rules.  Interpreting the rules, they adopt new standards or create exceptions to enforcement.  European Union directives and regulations were increasingly construed in diverse ways to reflect the different patent cultures of member states.  A landmark 2006 case at the European Court of Justice, Primus v. Roche, decided that patent law was so splintered that European patents did not hold a single right—but a bundle of independent national rights.

A Unified Patent Court was intended to address this problem.  Ratified by a number of European Union nations in April 2018, the idea was that only a tribunal might be able to realize the goal of innovation readily crossing borders.  While it has yet to begin functioning, there was widespread hope that such a court would allow patent owners to pursue a single legal action for infringement that would apply to all the signatory member states.  Most importantly, a single tribunal would shape a seamless transnational understanding of patent law’s contours.

The Unified Patent Court was intended to be split between three European cities.  Its central body would be in Paris.  Cases involving mechanical engineering would be heard in Munich—which is the site of the European Patent Office and the largest number of patent law firms in Europe.  London was designated as the location for issues involving pharmaceuticals, biotechnology, and chemistry.

Yet this court was challenged on constitutional grounds in Germany’s Constitutional Court (Bundesverfassungsgericht or BVerfG) and the outcome of this case is still uncertain.  In a number of public statements issued in the period after the June 2016 Brexit referendum, the United Kingdom suggested that it would remain under the jurisdiction of the Unified Patent Court.  Now, Prime Minister Boris Johnson has upturned the government’s decision.  The British government has decided Brexit means leaving the Unified Patent Court as well.

Britain’s decision was based on the fact that the court would be subject to European Union legal decisions, and, as a result, the United Kingdom would still be subject to European law slipping in through the backdoor.  But the implications are much broader.  The scuttling of the Trans-Pacific Partnership agreement, with its common patent provisions, when President Donald Trump took office and the British withdraw from the Unified Patent Court suggests that harmonization might be reaching its limits.  As we rediscover different approaches to patent in various countries that reflect diverse underlying legal and scientific cultures—what is called patent sovereignty—could we at least have the silver-lining of experimenting with novel ways for national patent laws to foster technological innovation that truly benefits the public?

 

Patent Cultures by Graeme Gooday and Steven Wilf

Patent Cultures by Graeme Gooday and Steven Wilf

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About the Author: Steven Wilf

Steven Wilf is the Anthony J. Smits Professor of Global Commerce at the University of Connecticut Law School where he founded the Intellectual Property program. He has served as Microsoft Fellow at Princeton University and Abraham L. Kaminstein Scholar in Residence at the United States Copyright Office. He is the author of The Law before the Law (2...

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About the Author: Graeme Gooday

Graeme Gooday is Professor of the History of Science and Technology in the University of Leeds' School of Philosophy, Religion and History of Science. From 2007–10 he led the AHRC-funded project Owning and Disowning Invention, which produced the prize-winning Patently Contestable (2013) with co-author Stathis Arapostathis. He was also co-leader w...

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