Fragmentation and the European patent system : a substantive law perspective

• Main Author: Walsh, Karen
• Other Authors: Pila, Justine
• Published: University of Oxford 2016
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.735884

Over fifty years after its original inception, the idea for a European unitary patent system has not yet been realised. Each attempt to introduce such a system has been met with fierce criticism. For the most recent proposal, the so-called unitary patent package, this tradition has continued. One of the most significant issues at the core of a majority of criticisms is that the existing European patent system is fragmented and that the proposed system will further increase this fragmentation. The almost universal assumption of commentators has been that this is a shortcoming of the system. However, to date no proper consideration of the legitimacy of this assumption has been attempted. Commentators have not asked what might the consequences be for the European patent system if fragmentation is a significant feature of the proposed system. This thesis considers the legitimacy of the assumption regarding the dangers of fragmentation for the European patent system, including substantive patent law. The conclusion reached has been that while fragmentation is a central feature of the existing European patent system, and is moreover likely to be a central feature of the proposed European unitary patent system, this is cause for neither criticism nor concern. On the contrary, fragmentation is not only an inherent feature of any European patent system, but also a desirable one. It is an inherent feature because no system has replaced the last, and rather than unifying the area, indirect law making has ensured a level of fragmentation. It is a desirable feature because the goals of European harmonisation and integration are not pursued entirely at the expense of national diversity. The fragmentation that exists within the current and future European patent systems should not be perceived as a negative feature of those systems, but rather embraced as an inherent and positive feature of them.