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Will this sky-reaching architecture host substantive patent law one day?

The short answer is … we don’t know yet!

A slightly longer answer is: It will, in the end, depend on the CJEU’s own interpretation of Article 5 of the Unitary Patent Protection Regulation (UPPR) and its understanding of the nature of the Unitary Patent Court Agreement (UPCR).

And a straightforward  answer may be: Only very rarely, if at all, because of three reasons:

  1. The CJEU is not a regular third instance above the two instances of the Unified Patent Court.
  2. The centralised structure of the Unified Patent Court – involving a Central Division in the first instance and a sole Court of Appeal as the second instance – will largely ensure uniform interpretation of substantive patent law anyway.
  3. As substantive patent law is largely harmonised in Europe already and thus falls under the acte-clair-doctrine, there are only very limited  substantive patent law issues left that are in risk of being interpreted differently in different countries (or by different local/regional UPC divisions) and would thus need to be decided by a preliminary ruling according to Art 267 TFEU.

The more detailed answer. While all this may or may not be true, it still makes sense to (again) look closer into Article 5 UPPR, which has been introduced as Article 5a into the draft Regulation on the EU Council meeting of 28/29 June 2012 in exchange of former Articles 6 to 8 draftUPPR that caused so much headaches to (parts of) the profession and industry (see e.g. here and here), especially in the UK (see here). The removed UPPR articles have been introduced into the UPCA as new Articles 14f to 14i. New Article 5 UPPR and its crucial § 3 reads:

Article 5 (Uniform protection)

1.  The European patent with unitary effect shall confer on its proprietor the right to prevent any third party from committing acts against which that patent provides protection throughout the territories of the participating Member States in which it has unitary effect, subject to applicable limitations.

2.  The scope of that right and its limitations shall be uniform in all participating Member States in which the patent has unitary effect.

3.  The acts against which the patent provides protection referred to in paragraph 1 and the applicable limitations shall be those defined by the law applied to European patents with unitary effect in the participating Member State whose national law is applicable to the European patent with unitary effect as an object of property in accordance with Article 7.

4.  [...]

But what does that mean?

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Will we ever find cases related to substantive patent law in here?

Articles 6 to 9 of the Unitary Patent Regulation relate to substantive patent  law. They regulate the right to prevent direct and indirect use of the invention (Art. 6 and 7, respectively), the limitation of the effects of the ‘Unitary Patent‘ (Art. 8) and exhaustion of the rights conferred by the ‘Unitary Patent‘ (Art. 9).

As the question of which EU member state will receive the Central Division of the EU Unified Patent Court (see here, here, and here) is officially seen as the only remaining obstacle to the Unified Patent Court Agreement, the Unitary Patent Regulation already received green light from the EU Parliament’s legal committee (JURI) in late December (see press release) so that the EU Council already began to linguistically finalise the Regulation text in early January.


Even so, a strong and illustrious ‘opposition movement’ of legal professionals and their associations (e.g. EPLAW and Jochen Pagenberg, European Patent Judges and Sir Robin JacobProfessor KrasserCIPA), industry representatives (e.g. ICCIP Federation), and a few politicians (e.g. JURI member Cecilia Wikström (SE, ALDE) [123] and UK IP Minister Baroness Wilcox) demanded Articles 6 to 8/9 to be removed from the Regulation to prevent substantive patent law from becoming subject to review by the European Court of Justice via referral questions according to Article 267 TFEU.

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