Einheit und die Vielfalt der Rechtsquellen des EU-Patents

The central question of the new patent protection system for the European patent with unitary effect is how to ensure uniform protection on the basis of the norms of different legal sources. In order to answer that question, the legal sources and the extent of the unification of substantive law has been examined as well as the interplay with both EU patent-specific and general conflict-of-law rules. Relevant legal sources include the Regulation 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection as well as the UPCA and the EPC. As sources of public international law, the UPCA and the EPC are applicable only as part of the national laws of the participating Member States designated by the applicable conflict-of-law rules. While the integration of these treaties into the national legal orders depends on the national rules on that matter, both the UPCA and the EPC are found in all these orders. For the success of the European patent with unitary effect, uniform norms and interpretations are key. In light of this overarching goal of the EU patent package, gaps in the new patent law system can be filled by the court where they can be qualified as »delegation gap«, meaning a fragmentary or incomplete gap deferring the solution of a particular question to the courts. For these delegation gaps and autonomous interpretation in general, the method of evaluative comparative law should be employed. The EPO tradition of referencing beyond the respective patent law system should be built upon and continued by the UPC.