Adding Fuel to Fire : A Complex Case of Unifying Patent Limitations and Exceptions Through the EU Patent Package

Harmonization of the laws is considered to be one of the solutions to deal with fragmentation and complexities. A fundamental issue here is how to structure a coherent system of rules to manage with the complex social, technological and economic realities. The increase in the stake holders has also highlighted the need to manage, coordinate or to govern fragmented complexities, including the complexity of connecting legal titles and claims held by multiple and heterogeneous networks of stake holders, with wide geographical scope of these activities. The arguments for a more extensive harmonization, whether they are substantive or procedural, are expressions of the intuitive belief that systematic complexity may reduce the utility of having property entitlement. The discussion to unify and centralize the procedure of handling IP disputes and enforcement, through specialist courts is one such effort to manage and coordinate the complexities. Harmonization of procedural or pre-grant conditions for patent protection has been on the agenda in Europe for some time, the limitation and exception to a patent right has long been the domain of national patent law. This chapter provides an overview of discussion concerning limitations and exceptions to a patent right in the overall context of harmonization of laws in Europe. The chapter assesses the manners of their harmonization in Europe through the adoption of unitary patent system. The chapter will provide first an overview of limitation and exception to a patent right in Europe and how they are drafted in current unitary patent package of the unified patent court agreement (UPCA) and the unitary patent regulation (UP Regulation). Highlighting whether doctrinal unification concerning limitation and exceptions to patent right in Europe is necessary or even possible, this chapter will finally argue that a partial statutory harmonization may create even more complexities and legal uncertainty. The chapter argues that as long as parallel national titles and international system of applications co-exist, fragmentation in the unitary effect of the unitary patent title seems to be unavoidable. Furthermore as there is a built-in deferral to national law, this chapter argues that the solution proposed in the unitary patent system may likely to be adding fuels to fire of complexities and fragmentation