An Institutional Examination of the Implications of the Unitary Patent Package for the Morality Provisions: A Fragmented Future too Far?

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 the 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.