International Patent Protection: Time for a fully EU Functioning Supra-National Patent Mechanism

Donal Loftus

Abstract


Larger industrial companies have become increasingly global in their functions and aspirations. With regard to patents, it is increasingly common for a multinational company to face alleged infringing acts committed by the same competitor in several countries. Securing international patent protection both at the acquisition and the enforcement stage is the corollary to the cross border exploitation of patents. The regulation of transnational trade and the international exploitation of patent rights have brought about international agreements concerning these closely related issues, such as international patent granting power, international harmonization of patent laws and uniform systems of jurisdiction and choice of law rules applicable to patent enforcement as well as other areas. However, there is an increasingly strained relationship between international patent acquisition and enforcement which is the dominant focus of this paper. Whilst a network of international agreements facilitates the grant of increasingly similar patent rights in many countries, cross border patent enforcement through the application of the relevant private international rules has been very weak. From a private international law perspective, the legal independence and territorial limitations of patent rights has severe implications for the application of the relevant jurisdictional and choice of law rules. Therefore, cross-border adjudication has indeed been challenged in the patent area. This paper seeks to focus on the problems associated with acquiring and enforcing patent rights at a multijurisdictional level, particularly within the EU.

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