@article{49112,
      recid = {49112},
      author = {Ullrich, Hanns,},
      title = {Patent Dependency under European and European Union Patent  Law – : A Regulatory Gap.},
      pages = {1 online resource (pages 1107–1124)},
      abstract = {Technological progress generally is not disruptive but  sequential. Innovations build on prior innovations,  typically by presenting improvements or complements. Under  patent law, such follow-on innovation meets with an  obstacle if the use of the invention underlying it  infringes a prior patent, and if, for one reason or  another, the owner of that prior patent prefers, as it may,  to refuse granting a license. It is only in case the  follow-on (or ‘second’) invention involves an important  technical advance of considerable economic significance in  relation to the invention claimed in the prior (or ‘first’)  patent that in Europe, in accordance with Art. 31 TRIPS,  national patent laws provide for a right of the owner of  the second patent to obtain, by way of a decision of the  patent office or of a court, a dependency license. By  contrast, the EU’s system of unitary patent protection does  not provide for a dependency licensing regime. Instead,  Regulation 1257/2021 on the European patent with unitary  effect refers the matter to national law. This means that  despite the importance of its invention the owner of a  dependent patent will never obtain a mandatory license  covering the Internal Market but only territorially limited  national licenses for which it must apply separately in  each Member State, go through multiple different procedures  and comply with different national requirements. The  absurdity of such hindering of follow-on innovation in the  Internal Market by regulatory abstention is no less as  regards national patents that the European Patent Office  grants as a bundle in the form of the European patent and  that are now additionally held together by the uniform  infringement rules of the Unified Patent Court Agreement.  After all, that category of a European patent is supposed  to represent an equivalent alternative to the unitary  patent and, therefore, ought to meet the same Internal  Market requirements. Therefore, this study proposes to  harmonize Member States’ dependency licensing regimes and  to complement the system of unitary patent protection  accordingly. To this end, it presents the common principles  of national regimes, analyzes the particular need for and  characteristics of modern mandatory licensing rules and  discusses the deficits of alternative approaches that might  be available under EU competition law. A particular  emphasis is put on distinguishing dependency licensing from  compulsory licensing in the public interest, and on the  functional complementarity existing between incentivizing  inventions by patent protection and stimulating follow-on  innovation by mandatory licensing regimes.},
      url = {http://tind.wipo.int/record/49112},
      doi = {https://doi.org/10.1093/grurint/ikad109},
}