Book Review: Unified Patent Protection in Europe

As we welcome new Kats to the team and say farewell to others, we know that once you are a Kat you are always in the Clowder! Previous GuestKat, Eibhlin Vardy, has kindly provided the following book review:

"Unified Patent Protection in Europe A Commentary", edited by Tilmann & Plassmann, is a tour de force, weighing in at almost 2,900 pages and containing contributions from 20 academics, practitioners and judges.  The reader is reminded of the scale of the ambition of the unified patent project when reviewing this commentary. This text is a suitable accompaniment to that project in terms of its aspirations and objectives.   

There is a detailed "Introduction" to the commentary, which contains for example, the background and history to the unified patent protection system, a review of the four 'independent protective groups' during the transitional period (i.e. national patents before national Courts, European patents before national Courts, European patents before the UPC and European patents with unitary effect before the unified patent court), and a brief review of economic and political assessments of the project by reference to various papers and reports.  There are several short annexes to address the challenges of Italy and Spain, Brexit, and the German Constitutional complaint.  Will there be more hurdles to overcome before the unitary patent finally roars into action? Readers will recall that the German constitutional complaint remains outstanding, thereby delaying Germany's ratification - and the rest of the project.  

The main body of the book is divided into four sections, each with an introductory section and detailed commentary on one of the new legal instruments of European patent protection: (1) the Unitary Patent Regulation (Regulation (EU) No 1257/2012);  (2) the Translation Regulation (Council Regulation (EU) No 1260/2012); (3) Agreement on a Unified Patent Court (2013/C 175/01); and (4) Rules of Procedure of the UPC. The introductions provide an insightful overview, that helps the reader get to grips with the underlying structure of the legal instruments and their rationale.  The detailed commentary might cover for example, the history and evolution of a provision, any controversy in its development, different approaches in other jurisdictions, as well as a methodical dissection of the provision in question.  The structure of the book is therefore one that allows the reader to have a comprehensive understanding, whilst providing a convenient and detailed day to day reference guide for practitioners. 

The supporting material referenced in the Unitary Patent Regulation and Agreement on a Unified Patent Court sections is particularly impressive, spanning case law from European and national Courts, legislation, treaties, journal articles, Council documents, EPO materials and even press releases.  Throughout the text there are cross-references to other provisions of the new legal instruments.  For example, Art 62 of the Agreement on the UPC covering "Provisional and Protective Measures" contains summaries of various rules of procedure on protective letters, applications for a preliminary injunction, preparation of decisions and decisions. Elsewhere, there are helpful standalone guides - for example, a diagram pulling together those provisions of the European Patent Convention, Unified Patent Court Agreement and Unitary Patent Regulation that contribute to a European Patent with unitary effect (page 66), and a table of CJEU decisions on SPCs (along with a brief summary of the key issues) to accompany Article 30 of the Agreement on the UPC covering the effects of SPCs (pages 571 - 577).  

It is difficult to do justice to a book of this magnitude in a short book review, but if you are looking for an in-depth text covering anything you could want to know about the proposed European unified patent system - then this is the title for you. If there are any criticisms, it is that the book seems significantly weighted towards decisions of the German Courts rather than other jurisdictions, potentially reflecting the professional backgrounds of the various contributors. On occasion it is apparent that the text is an English translation of the German original, but the quality of translation is very good.  These are only minor quibbles, and they do not detract from the appeal of the text.    
This is the tome that you want on your desk - if and when the unified patent system goes live.  

The book is available from Oxford University Press - full details below. 

Unified Patent Protection in Europe A Commentary, edited by Winfried Tilmann & Clemens Plassmann
First Edition published in 2018
ISBN 978-0-19-875546-3
Price: $375
Pages: 2878
Also available as an e-book.
Book Review: Unified Patent Protection in Europe Book Review: Unified Patent Protection in Europe Reviewed by Hayleigh Bosher on Friday, August 09, 2019 Rating: 5

1 comment:

  1. The book might only become interesting should the UPC come into force, and nothing is less sure than this. With the present UK PM, one can have reasonable doubts that a reference to the CJEU will be tolerated after Brexit.

    On the other hand, the RoP have not yet been adopted by the Commission. So the book appears a bit too early. On the other hand, the RoP contain procedures unknown in most Contracting States, like forced intervention. A decision of the UPC might be applicable to a third party not having taken part in the whole procedure! I doubt that this can be constitutional in a number of Contracting States.

    The heavy reference to German decisions is not a surprise for those having witnessed the various mock trial conducted in different places.

    One observation was that reliance on national traditions was very heavy, especially if the panel is composed with two judges of the same nationality. They can easily outvote the third judge, or ignore the technical judge, as the chairman has a casting vote.

    The Court of Appeal of the UPC will have a lot of work and it is only after enough decisions of the Court of Appeal, that it will be possible to say that the UPC will be successful or not. Then a book might be justified, but not presently.

    One could also consider that the book is a call to the German Constitutional Court to dismiss the objections of Mr Stjerna. One of the publishers of the present book has clearly taken position in this respect. Its interpretation of Opinion C 1/09 has also changed with time....


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