The EPO as patent law‐maker in Europe

Date01 January 2019
Published date01 January 2019
The EPO as patent lawmaker in Europe
Aurora Plomer*
This article examines the role of the European Patent Organisation (EPO) in the European patent
system. It shows how the delineation of European patent law has been handed over by
governments to an autonomous, quasijudicial technocracy at the EPO and reveals how the
process of hollowing out economic and political factors in the grant of patents is assisted by
the deference of national courts to the EPO and the creation of the Unified Patent Court. It
suggests that these developments pose a threat to democratic governance of the patent system
in Europe because the delineation of intellectual property rights has inherent economic and
political dimensions which are not reducible to technical legal issues of interpretation or
technocratic expertise.
In the last decade a rich body of scholarship has emerged on global constitutionalism and the role of courts in
multilevel judicial review in democracies.
In Europe, two interdisciplinary centres have been created in Oslo and
Copenhagen respectively to engage in longterm research projects on the origins, function and legitimacy of courts
and the growing international judicialisation of global governance. At the ICON 2017 international conference on
Courts, Power and Public Law, hundreds of presentations were devoted to the ascendency of constitutional and
international courts, commercial tribunals and the World Trade Organization (WTO) whilst just one panel addressed
the topic of intellectual property and specialist patent ourts.
Yet, the growth of specialist patent courts poses unique
and critical challenges for democratic governance because of the powerful monopolies created by intellectual prop-
erty rights. This suggests that there is a gap in the burgeoning research on judicial governance in liberal democracies
and the scholarship on global governance of intellectual property rights.
In Europe, the creation of the Unified Pat-
ent Court (UPC) has given rise to polarised views on the UPC's relationship with the Court of Justice of the European
Union (CJEU). Much of this scholarship explores the constitutional avenues for closer integration of the UPC with the
*University of Bristol School of Law, Bristol, UK (
Notably, R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2009 ),
S. Gill and A. Cutler (eds.), New Constitutionalism and World Order (Cambridge University Press, 2014).
ICON·S 2017 Conference on Courts, Power, Public Law, Copenhagen, 57 July 2017.
A rare exception is K.J. Alter and L.R. Helfer, The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017). On
the creation of specialist patent courts in the US, see R.C. Dreyfus, What the Federal Circuit Can Learn from the Supreme Courtand
Vice Versa(2009) 59 American University Law Review, 787.
Received: 18 September 2017 Revised: 14 December 2018 Accepted: 17 December 2018
DOI: 10.1111/eulj.12304
Eur Law J. 2019;25:5774. © 2019 John Wiley & Sons 57
CJEU whilst implicitly assuming that more judicial involvement at a higher level will mean more checks and controls
over commercial interests and ultimately more democracy in the grant and enforcement of patents in Europe.
Calls for greater involvement of the CJEU also tend to assume that democratisation of the European patent system
will be achieved with the aid of the Charter of Fundamental Rights as a legal brake on the rights of exclusivity and
monopolies created by patents.
None of this scholarship engages with the theoretical and comparative empirical
studies that question the wisdom that more courts and more human rights means more democracy.
This article is intended to begin the process of bridging the gap between the critical scholarship on judicial gov-
ernance in liberal democracies and the IP scholarship on governance of intellectual propertyrights in Europe. The first
part sets out the social and economic significance of patents and the threats to democratic governanceposed by the
rise of juristocracies. The second part examines the role and structure of the European Patent Organisation (EPO). It
argues that whilst the EPO is presented as a functionalist, apolitical organisation, in reality, the EPO is the main
determinant of patent policy and patent law in Europe. The analysis further reveals that whilst the EPO is not an
agency of the European Union, it exercises similar functions to European Union agencies but is fully insulated from
control by national legislatures and the European Union. The last part examines the normative path dependencies
resulting from the EPO's role in the grant of European patents and its privileged position as first interpreter of the
European Patent Convention (EPC). It illustrates the deference shown to the EPO by generalist national courts
through the case study of the UK Supreme Court's approach and it argues that this deference is indicative of the
hegemony of the EPO whose role remains unaltered by the UPC.
Patents are economic rights which confer on patent holders the right to exclude others from using the patented
invention for a minimum period of 20 years.
As such, patents enable patent holders to control markets and exercise
a powerful monopoly since they prevent competition from others in the use and exploitation of the invention. This
may seem paradoxical since patent advocates are also typically proponents of neoliberal market freedoms, but the
tension between patent monopolies and free trade was well understood by economists in the nineteenth century
who vigorously questioned the wisdom that patent monopolies would promote economic progress.
All the same,
patent protectionism ultimately prevailed and paved the way for global harmonisation of IP rights, originally through
the adoption of the Paris Convention for the Protection of Industrial Property adopted in 1883 and the Berne
Convention for the Protection of Literary and Artistic Works adopted in 1886. Both treaties were later incorporated
and IP protection expanded inthe TradeRelated Agreement on Intellectual Property Rights (TRIPS, 1994) adopted in
the Uruguay Round of the GATT negotiations, which led to the creation of the WTO. TRIPS has been described as
the most important international law treaty of the twentieth century because it imposes an obligation on all Members
of the WTO to adopt minimum standards of intellectual property protection under the jurisdiction of the WTO
dispute settlement system.
See, for instance, T. Jaeger, Reset and Go: The Unitary Patent System PostBrexit(2017) 48 IICInternational Review of Intellectual
Property and Competition Law, 254285. T. Mylly, Hovering between Intergovernmentalism and Unionization: The Shape of Unitary
Patents(2017) 54 Common Market Law Review, 13811425.
C.S. Petersen and J. Schovsbo, DecisionMaking in the Unified Patent Court: Ensuring a Balanced Approach, in C. Geiger, C. Nard
and X. Seuba (eds.), Intellectual Property and the Judiciary (Edward Elgar, 2018), 231254.
Trade Related Agreement on Intellectual Property Rights (TRIPS), Art. 33.
F. Machlup and E. Penrose, The Patent Controversy in the Nineteenth Century(1950) 10 The Journal of Economic History,129.
The tension between IP protectionism and free market competition is discussed by J. Reichman, From Free Riders to Fair Followers:
Global Competition underthe TRIPS Agreement(1996) 29 New York University Journal of International Law and Politics, 11. Reichman
argues that IP protectionism stands against the public interest in free competition and enjoins developing countries to counteract the
adverse social and economic impact of TRIPS through the adoption of procompetitive policies.

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