Die Schattenseite des Einheitspatents

When introducing the European patent with unitary effect (unitary patent) the EU legislature stopped at midway to creating a European intellectual property right providing protection throughout the Union (Art. 118(1) TFEU). Regulation (EU) 1257/2012 unifies the protection of a European patent only as regards its negative, defensive function, not as regards its transactional function as an object of property, i. e., as a merchandisable asset. First, contrary to first impression, compulsory licenses for the unitary patent, such as mandatory licenses for the exploitation of technically highly advanced and economically important dependent patents, are not covered and, thus, will not be available at all. Second, although covered by Reg. 1257/2012, its Art. 8 deals only cursorily with licenses of right, thus rendering them practically unavailable. Third, even more importantly, the applicability of a single national law, namely that of the patent applicant's residence or place of business, to the unitary patent as an object of property, while seemingly creating uniform law, ultimately results in legal inequality of unitary patents and in obstacles to their exploitation because their status varies with the applicable national laws and their impact on the patent's value and exploitability. This split regulatory approach is due to the EU legislature's ill-conceived idea that as to its defensive function a patent needs fully uniform protection while as to its inclusive function as a property right it needs not to be subject to particular regulation by Union law. However, both functions are but the two faces of the same right. It is the exclusionary effect of the patent that constitutes it as an object of property and determines its market value. Therefore, the value of the unitary patent may only be brought to full bearing on the market for technology and licensing if the law provides for sufficiently detailed uniform rules that fit its transactional function. Filling this regulatory deficit of Reg. 1257/2012 is the more necessary as in the EU the relevant market for determining the unitary patent's transactional value and, thus, its attractiveness as an incentive for investing in innovation is the entire Internal Market.