The “(EU) Unitary Patent Package” : (Dis)Harmonizing Computer-Implemented Inventions Patents in Europe?

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The “Unitary Patent Package” recently signed within the framework of the European Union aims at enabling better and more efficient management of patent rights in the European area, through the eradication of simultaneous local patent disputes and divergent legal opinions. Indeed, the premise of the new system is admirable. It sets out to achieve a reduction in pre-grant patenting costs, post-grant litigation costs and overall harmonisation of the European patent system, this way reducing complexity, gaining easier access to a single market and reducing costs. This paper shows, however, that reality determines that the potential benefits of the reform is more of an aspirational exercise, as the substance of the new law seems to add more complexity, less transparency, and increased fragmentation to the overall system. Problems might be especially exacerbated in areas like computer programs, where the already highly complexity of the rules might lead to an even further degree of dis-harmonization of the law. First, this paper analyses the problems associated with applying European patent law to computer-implemented inventions (CII) within the framework of the currently in-force rules. The EPO concepts and lines of interpretation of the “technical” criterion are especially emphasised. Second, the CII-patents’ challenge is then contextualized within the framework of the EU unitary patent regime in order to answer the specific question of whether the new system might (or might not) provide an efficient tool for reaching a more uniform interpretation of the technical requirement, this way solving this almost-a-quarter-of-a-century lasting dilemma.

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