Trolls a Divided Market. European Unitary Patant Facing the European Union Internal Market and Competition

Abstract

The aim of this contribution is to identify the particular challenges deriving from introduction of the unitary patent protection system in the European Union (i.e. the European patent with unitary effect). Contrary to its name, the system will have a non-unitary legal shape (since it will be established by two Regulations - sources of the EU law and an international agreement), as well as territorial shape (due to employing the enhanced cooperation procedure, it will not be effective in Spain and only partially effective in Italy and Poland). Adopting such solutions might imply significant challenges for the functioning of the internal market of the European Union, as it will be very difficult to determine the actually applicable provisions of the EU law, especially those concerning free movement of goods, to the actors holding unitary patents. This brings up the question of the legal certainty and stability of economic undertakings in the Union. The second important problem follows firstly, the translatory regime of the unitary patent system: patents will be granted only in English, German or French and will not be translated any further, and secondly, the dispute settlement mechanism, adopted within the unitary patent system. Consequently, this contribution aims to answer whether such a legal construction might attract patent trolls entering the Union's market. The latter might in the long run negatively affect the EU's economy and its competitiveness on the global market.