The Unitary Patent Package, the Court of Justice of the European Union, and Brexit: (Ir)reconcilable?

Abstract

For seventy years, debates in the European patent community have centred on the introduction of a unitary patent system. For an efficient and effective European patent system, there are two key aspects – the promotion of harmonisation and the consideration of wider societal implications. In considering these two key aspects, this article focuses on the role of the Court of Justice of the European Union (CJEU) in the Unitary Patent Package (UPP) and the added complication of Brexit. In doing so, it examines the relevant institutional issues that have arisen in the lead up to the finalisation of the UPP, which continue to cause issues as a result of Brexit, and proposes a new way forward for reconciliation. It is argued that the continued questioning of the role of the CJEU goes against the overarching goal of a harmonised patent system that still considers the wider implications of its decisions.