VALIDACIÓN DEL CAPÍTULO 2

132 Id.

133 Dec. 17, 2012, 2012 O.J. (L 361) 1.

134 No. 05-1238 (Fed. Cir. Feb. 1, 2007).

Europe has the following patent systemsexisting simultaneously:

Fig. 4.9 Patent Systems Co-existing in Europe (at the time of the writing)

The Preparatory Committee of the Unified Patent Court drew the following diagram in their brochure, ―An Enhanced European Patent System‖, showing the available routes of patenting in Europe after the EU patent shall come into force (The Preparatory Committee 2014):

Fig. 4.10 Three Routes of Patent Protection in Europe (Illustration from the Preparatory Committee 2014, 3)

PCT ((Patent Cooperation

Treaty );

Operated Internationally;

Contracting States: 148)

EU Patent (Unitary Patent;

25 Countries;

Croatia, Italy and Spain are not on board (at

the time of the writing))

European Patent ((EP);38 EPO

Member States + 2 Extension States) National

Patent ((NP); 50 Countries in

Europe)

The European States have differing approaches in exercising the PCT route.

Fig. 4.11 Patent Route in Europe through PCT (WIPO: PCT Contracting States for which a Regional Patent can be Obtained via the PCT 2014)

4.5.4.1 EUROPEAN PATENT AND UNITARY PATENT PROTECTION

The Preparatory Committee of the Unified Patent Court in their brochure, ―An Enhanced European Patent System‖, stated how the European Patent shall be given effect to Unitary Patent Protection

Via PCT:

• Regional Patents (EP (European Patent)) Only;

• No National Patent

Italy

Lithuania

Via PCT:

• National Patent and Regional Patent (EP (European Patent)) ; or

•Regional Patent instead of National Patent

Germany

Spain

UK

(The Preparatory Committee 2014) and the Steps are following:

Fig. 4.12 Procedural Simplification. The applicant will get patents in 25 EU Member States by one single application (The Preparatory Committee 2014, 4--5)

Applicant EPO

EPO EPO

The Unitary Patent (UP) protection will bring the following advantages for the patent owners:

Fig. 4.13 The disadvantages EU Patent will overcome (The Preparatory Committee 2014, 5)

The areas addressed shall bring simplification in mainly the procedural and financial aspects of patenting in the EU Countries. This UP did not address any of the substantive concepts of patenting.

The countries where the patenting of hSCI are subject to strict restrictions for embryo destruction or on ethical grounds, can not be taken to be a part of this cluster of patents. Hence, the patent seeker (prospective patentee) may have to try the classical European Patent‘s route and elect the individual States where the patent is obtainable. Therefore, for hSCI facing exclusion on ethical grounds in even one of the 25 States will not be able to get the Unitary Patent Protection; because the unitary effect is meant to be given in the 25 states en bloc. The authority of the States over granting a national patent remains at the hands of the States. So, the patents not qualified to give unitary effect, but eligible to get patent in any of the European State shall be enforced and challenged nationally.

Therefore, the EU patent (Unitary Patent) and UPC will not do the harmonization of human stem cell patent landscape, particularly in the ethically contested inventions. According to the Article 64(3) of the European Patent Convention 1973, the infringement of a patent granted under the European Patent Convention ―shall be dealt with by national law.‖¹³⁵ But a Unitary Patent shall be enforced and challenged at the Unitary Patent Court (hereinafter referred to as UPC). It is most likely that in debated and controversial areas of stem cell patents, EU patent will not be available and so the UPC will not be the forum of litigation for infringement and validity of such patents. Therefore, ―the diversity in enforcement (infringement and validation) shall remain‖ in one hand, ―the option of choosing the route of patenting shall increase‖ on the other hand, for those inventions. The ethically controversial inventions from the hSCR perhaps will find the ―national patenting‖ as the better choice to explore.

135 Supra note 26.

Does not have to validate the patent in each States individually where the protection is desired (The Preparatory Committee 2014);

Simplification in translation formalities (requires only two languages). Can avoid the translation requirement of the classical European Patent at the State level (The Preparatory Committee 2014);

Can avoid the publication fee at the respective National Patent Office (NPO) (The Preparatory Committee 2014);

No need to pay the renewal fee in individual States where the patent is valid; One renewal fee at EPO is enough (The Preparatory Committee 2014);

Fig. 4.14 Forum to address the validity and infringement of European and EU Patent (until the transitional period under the Agreement on a Unified Patent Court 2013 is over) (European Patent Office: Unified Patent Court 2014)

The jurisdiction of the UPC shall extend to:¹³⁶

Fig. 4.15 The UPC will be competent to entertain disputes from the EP and UP and enforce the decision in the States ratifying the Agreement on a Unified Patent Court 2013

However, Article 83 of the Agreement on a Unified Patent Court 2013 (hereinafter referred to as UPC Agreement) provides a transitional period of 7 years (with the possibility of extension to a further 7 years) within which the actions can be brought to the national Court of the contracting States of the UPC Agreement on the infringement and revocation of a European Patent.¹³⁷

136 According to Article 34 of the Agreement on a Unified Patent Court 2013, the ―[t]erritorial scope of decisions‖ of the UPC is stated as following: ―Decisions of the Court shall cover, in the case of a European patent, the territory of those Contracting Member States for which the European patent has effect.‖ Agreement on a Unified Patent Court, Feb 19, 2013, 2013 O.J. (C 175) 1.

137 Article 83(1) stated that, ―[d]uring a transitional period of seven years after the date of entry into force of this Agreement, an action for infringement or for revocation of a European patent or an action for infringement or for declaration of invalidity of a supplementary protection certificate issued for a product protected by a European patent may still be brought before national courts or other competent national authorities.‖ Id.

European Patent