The European Patent Package – Rights’ Non-Unity, Choice-of-Law Enigma, and Mysteries of Gap Filling

Abstract Choice of law and rights enforcement in international and cross-border patent cases has always been challenging. This is one reason why academics and practitioners have been keen to unify patent law, welcoming the European Patent Package with the Unified Patent Court, and the centrepiece of the system – the European patent with unitary effect. Yet even though the Package seems to have overcome many of the traditional problems associated with territorial, patchwork, and heterogeneous national patent laws, challenges related to choice of law and gap filling remain. One might even say that problems in these fields have become yet more pervasive and complex. This article explores three key questions related to choice of law and gap filling under the reign of the European Patent Package: (1) What level of ‘unification’ of individual legal titles and rights (i.e. European patents with unitary effect and classic European patents) and of the enforcement of these rights has been achieved? (2) How do choice-of-law norms in the new unified patent system, the pre-existing EU acquis in private international law, and the provisions of substantive patent laws in international, European, and national patent regimes interact? And finally (3): How can gaps in the unitary patent system’s substantive law be filled?