art. 6 – 8 of the draft unitary patent regulation prof. dr. winfried tilmann

Art. 6 – 8 of the draft Unitary Patent Regulation

Prof. Dr. Winfried Tilmann

www.hoganlovells.com 2

Art. 6 -8 included

• Grant of the patent: EPC• Revocation of the patent. Art. 138 EPC• Block grant, block revocationArt. 142 EPC• Block transfer Art. 148 EPC• Scope of protection Art. 69 EPC +

Prot.• Protection claims Art. 64 EPC• Injunction claim Art. 118 TFEU and

Art. 6 – 8 Reg.

At least one protection claim by Union Law!


Art. 3 (2) draft-Regulation

(2) A European patent with unitary effect shall have a unitary character (Art. 142 EPC). It shall provide uniform protection and shall have equal effect in all participating Member States (Art. 118 TFEU).

Without prejudice to Article 5, a European patent with unitary effect may only be limited, licensed, transferred, revoked or lapse in respect of all the participating Member States (Art. 148 EPC).


Art. 6 – 8 excluded


Prot.• Protection claims Art. 64 EPC + UPC• Injunction claim UPC

No Union Law "uniform protection"!


Art. 118 TFEU

Article 118

(1) In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and

supervision arrangements.


Art. 118 TFEU

may only be used as basis for the Regulation, if the "patent with unitary effect"• is a Union law IP right (like the CTM),

because it• provides for Union law "uniform

protection"

The EP gets a Union IP right quality by Union law "uniform protection"


Art. 6- 8 deleted


Prot.• Protection claims Art. 64 EPC + UPC• Injunction claim UPC

In that case: No Union IP, no "Union law uniform protection"!


Art. 6- 8 included


Prot.• Protection claims Art. 64 EPC• Injunction claim Art. 118 TFEU and

Art. 6 – 8 Reg.

Union law "uniform protection" transforms the EP into an European IP-right


Thank you


Art. 148 (2) EPC

The group of Contracting States may provide that a European patent application for which these Contracting States are designated may only be transferred, mortgaged or subjected to any legal means of execution in respect of all the Contracting States of the group and in accordance with the provisions of the special agreement.

= Block transfer etc.


Art. 64 (1) EPC

A European patent shall, subject to the provisions of paragraph 2, confer on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.= Basis for harmonisation in Regulation and in Court Agreement


Art. 142 (1) EPC

(1)Any group of Contracting States, which has provided by a special agreement that a European patent granted for those States has a unitary character throughout their territories, may provide that a European patent may only be granted jointly in respect of all those States.

= Block grant and block revocation .


Art. 3 (2) draft Patent-Regulation

(2) A European patent with unitary effect shall have a unitary character (Art. 142 EPC). It shall provide uniform protection and shall have equal effect in all participating Member States (Art. 118 TFEU).

Without prejudice to Article 5, a European patent with unitary effect may only be limited, licensed, transferred, revoked or lapse in respect of all the participating Member States (Art. 148 EPC).


Article 118 TFEU

Article 118(1) In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and

supervision arrangements.


Art. 148 (2) EPC

The group of Contracting States may provide that a European patent application for which these Contracting States are designated may only be transferred, mortgaged or subjected to any legal means of execution in respect of all the Contracting States of the group and in accordance with the provisions of the special agreement.

= Block transfer etc.

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art. 6 – 8 of the draft unitary patent regulation prof. dr. winfried tilmann

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