UPC – Substantive Aspects of Compulsory Licenses

Unitary patents entitle their holders to uniform protection in all Member States. Upon finding of a patent infringement, the Unitary Patent Court (UPC) may issue an injunction that has an equal effect across Member States. The unitary patent system provides a strong foundation for protecting unitary patents with a property rule4 that guards the patent holders’ right to exclude others from using their patents and decide on their licensees. In contrast, the system offers remarkably little leeway for narrowing the unitary patent protection with a liability rule wherein the patent holder must grant access to the patent against a court-determined remuneration either via compulsory license or by means of denying an injunctive relief. The absence of a compulsory licensing instrument with a unitary effect disbalances the patent system in favour of the patent holder at the expense of other legitimate interests in accessing patents. For the unitary patent system to adequately respond to the contemporary challenges impacting the European innovation landscape, not only it is necessary to introduce compulsory licenses with unitary effect, but also to design the instrument to better account for temporal pressures associated with access to patents. [footnotes omitted]Peer reviewe