A post-patent-torpedo EU? - An analysis of the Unitary Patent Package’s impact on torpedo actions within the EU

Sammanfattning: Patent suits are among the more expensive legal endeavours a party can partake in. The best-case scenario for patentees is a cease-and-desist letter, where the threat of an impending suit convinces the alleged infringer stop altogether. If the alleged infringer insists, a court solves the matter and business may continue as usual. In the EU however, this chain of events is complicated by the possibility of utilizing the “Italian torpedo”. The Italian torpedo is a functional stop-block for any proceedings from the patentee for an extended period of time. The infringer utilizes the Brussels 1a regulation’s lis pendens rules and addresses courts with long turn-around time. Any actions or threats of actions from the patentee is thus rendered mute. While several national courts within the EU have sought to circumvent this problem, most, if not all, of these efforts have been declared illegitimate by the CJEU. This situation, in conjunction with other problems of the fragmentary nature of the European Patent system have led the EU to implement the Unitary Patent package, which is a new patent system and patent litigation system that seek to change the foundations of the current system. This thesis aims to explore how the torpedo situation has arisen in the EU, what mechanisms have allowed it to persist and how case-law from the CJEU may have allowed torpedo actions to continue. Furthermore, the thesis aims to explore what a Unitary Patent is, in particular how such patents can be defended within the system of the new Unitary Patent Court with special reference to how regulations 1257/2012 and 524/2014 and [the] Agreement on a Unified Patent court deal with jurisdiction at a system level and at the EU level. Additionally, the thesis aims to analyse if and how the new system tackles torpedo actions, and whether or not these or similar actions may persist in the new system.