McMahon, Aisling (2017) An Institutional Examination of the Implications of the Unitary Patent Package for the Morality Provisions: A fragmented future too far? Durham Research Online, 48 (1). pp. 42-70. ISSN 0018-9855
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Abstract
This article examines the institutional changes created by the unitary patent package (UPP), including the unified
patent court (UPCt), in the European patent system. It focuses specifically on the implications of these changes
for the morality provisions for biotech inventions: contained in Art 53(a) EPC and Art 6 Biotechnology Directive
98/44EC. These provisions were chosen as a site of investigation because of the overlap of substantive EU and
EPC laws involved. Furthermore, despite the identical wording of these provisions in the EPC and Directive, the
open-textured nature of these morality provisions requires interpretation by the adjudicative bodies in each
institutional framework. Hence, institutional influences on adjudicative bodies are heightened. Accordingly, these
provisions provide an ideal site to examine the significance of the addition of another adjudicative body, the UPCt
to the European patent system.
The article examines the implications of having adjudicative bodies operating in differing institutional
frameworks in contexts where States have overlapping obligations to international treaties. It argues that the
UPCt is not institutionally configured to apply these provisions in the same manner as the generalist CJEU and
demonstrates that the UPCt’s openness to refer questions to the CJEU is crucial to ensuring the UPP does not
become blinkered to broader issues. Moreover, it argues that the unitary nature of the European Patent with
unitary effect (EPUE) is problematic because it fails to accommodate national divergence on the morality
provisions and it is unclear whether morality is to be judged at a national, EPC or EU level. A mechanism for
maintaining national divergence in this context is proposed.
Item Type: | Article |
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Keywords: | Unified Patent Court; Morality Provisions; Institutional; |
Academic Unit: | Faculty of Social Sciences > Law |
Item ID: | 11642 |
Identification Number: | 10.1007/s40319-016-0541-2 |
Depositing User: | Aisling McMahon |
Date Deposited: | 06 Nov 2019 11:34 |
Journal or Publication Title: | Durham Research Online |
Publisher: | Springer |
Refereed: | Yes |
Related URLs: | |
URI: | https://mural.maynoothuniversity.ie/id/eprint/11642 |
Use Licence: | This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here |
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