Harmonising the Acts of Patent Infringement in Europe

The value of an exclusive right can be measured by its enforceability. The enforcement of a patent right in Europe is a highly complex endeavor. The European patent system is characterised by three irreconcilable factors: territoriality, fragmentation and harmonisation. There has been a consistent striving for harmonisation within the European patent system in response to the territorial and thereby fragmented protection of patent rights. This dissertation studies the legal harmonisation of the acts against which a patent provides protection (the infringing acts) and the applicable limitations. The study is conducted at three levels. First, through the legal order of the European Union (EU), including the EU’s exclusive competence over the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights. Second, through national case law from the courts of Sweden, Germany, England and Wales as well as judicial dialogues between domestic courts. Third, through the newly established Unified Patent Court (UPC) system. The UPC, which was established in June 2023, adds to the EU’s attempts to resolve the fragmentation of the European patent system. However, the system underlying the UPC is dependent on law outside the EU legal order, such as the European Patent Convention and the Agreement on a Unified Patent Court, an international agreement inter se the participating Member States of the EU. Arguably, the UPC system is designed to prevent the EU and the Court of Justice of the European Union (CJEU) from having too much influence on the enforcement of patents. The Member States removed the provisions regulating the infringing acts and the applicable limitations from a proposal for the EU Regulation on the protection of the unitary patent. Thus, they aimed at preventing the CJEU from having interpretative jurisdiction over the effects and limitations of the EU unitary patent right. The dissertation evaluates the mechanisms that have contri