The Unified Patent Court (UPC), Compulsory Licensing and Competition Law

Competition law and rules on compulsory licensing are considered as indispensable instruments to balance patent rights. In this article, we examine the room for using such balancing instruments in the context of the UPC. We analyse whether the balancing instruments will remain applicable to European patents (with or without unitary effect) and to what extent the UPC will have competence to use these balancing instruments in cases brought before it. Our analysis shows that the UPC to some extent will have competence to use the balancing instruments mentioned, but also that there is a risk that the UPC is likely to be less inclined to use them. To redress that problem we suggest that the UPC acknowledges the institutional biases of the court and looks for ways to include other values and interests than the proprietary values and interests of patent law