How to straighten up the shaky foundations of the unitary patent system: piercing the non-EU law bubble and reintegrating the UPC within the EU judiciary?

Desaunettes, Luc [UCL] Strowel, Alain [UCL]

This paper explores how to address some issues in the design of the European patent with unitary effect. Its intent is not to make a proposition on how to reshape the new patent system from scratch but explore how to fix the existing gaps and shortcomings within the proposed system. In this regard, the paper first highlights the main issues that need to be addressed as a priority, namely those concerning the externalisation of patent law from the EU legal order, its uncertain compatibility with EU law and the risks raised by the Unified Patent Court design with respect to the right to a fair trial. Solutions that would permit, first, to re-integrate the UPCA within the orbit of EU law with the aim of re-establishing the CJEU as last resort jurisdiction for patent matters and, second, re-empower the EU legislator for determining the substantive rules of the Unitary Patent, are then explored.