从统一效果的欧洲专利法律治理看欧盟国内法与国际法的关系

I. Maryniv
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The subject of this research are the potential challenges the enforcement of the EU law may pose to the Unified Patent Court, along with enforcing Contracting State’s domestic law and international treaties, binding to the Contracting States as well as potential threats that can emerge after the Unified Patent Court becomes operational, especially the threat of legal fragmentation in terms of patent relationships. Profound analysis of the rules, that set the procedure of using different types of legislation while hearing the patent disputes cases has been made. The legal opinions of the Court of Justice of the European Union concerning the autonomous judicial bodies and their influence on the EU law have been presented. Potential threats to the EU legal system’s integrity and possible ways of deterring them have been outlined. Comparisons between recent and previous legal problems concerning the field of the EU law integrity have been made. The main arguments of the Court of Justice of the European Union have been studied and the most durable ones have been stressed as the milestones of the future Unified Patent Court legal practice. Conclusions about the importance of domestic and EU law correlation in light of patent legal sphere have been made. The drawbacks of current EU legislation and the need for the Court of Justice of the European Union to reconsider its positions have been mentioned. Analysis of recent researches and publications. The problems of compiling EU rights and national rights of EU member states in the context of their use by EU institutions, as well as other bodies, in particular the ECHR, as well as the question of fragmentation of patent law, were raised by the following EU researchers: Kristof Krenn, Giuseppe Martinico, Jorg Polakiewicz, Sionaidh Douglas-Scott, Steve Peers, Douwe de Lange, Tatiana Komarova. Purpose of the research is to conduct a profound analysis of the problem concerning the use of EU law and other legal sources by the Unified Patent Court during its future legal practice and to study the bonds between the Court of Justice of the European Union, the Unified Patent Court and Contracting Member States and their role in the creation of the new legal framework. Article’s main body. The analytics of the EU patent law harmonization has been an object of attention of many researchers so far. For instance, Reto M. Hilty and the collective of authors, who studied the problem of enforcement of law, that forms the so-called «patent package», explicitly paid their attention to the question of jurisprudence fragmentation, the point of which is that as soon as the Agreement on a Unified Patent Court comes into force, several judicial bodies will cover the territory of the Contracting Member States with their jurisdiction simultaneously. 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引用次数: 0

摘要

问题设置。本文致力于检测欧盟成员国国内法与新创建的专利法治理体系之间关系的法律性质。其中包括关于在建立统一专利保护领域实施加强合作的第1257/2012号理事会条例和关于在建立统一专利保护领域实施加强合作的第1260/2012号条例,涉及适用的翻译安排以及统一专利法院协议。本研究的主题是欧盟法律的执行可能对统一专利法院构成的潜在挑战,以及执行缔约国的国内法和国际条约,对缔约国具有约束力,以及统一专利法院开始运作后可能出现的潜在威胁,特别是专利关系方面的法律分裂的威胁。对专利纠纷案件审理中运用不同类型立法程序的规则进行了深入分析。已经提出了欧洲联盟法院关于自治司法机构及其对欧盟法律的影响的法律意见。欧盟法律体系完整性面临的潜在威胁,以及阻止这些威胁的可能方法已被概述。比较了欧盟法律完整性领域最近和以前的法律问题。对欧洲联盟法院的主要论点进行了研究,其中最持久的论点被强调为未来统一专利法院法律实践的里程碑。从专利法的角度出发,对国内法与欧盟法的关联的重要性进行了总结。有人提到了目前欧盟立法的缺点以及欧洲联盟法院需要重新考虑其立场。分析最近的研究和出版物。在欧盟机构以及其他机构(特别是欧洲人权法院)使用欧盟权利和欧盟成员国国家权利的背景下,编纂欧盟权利和国家权利的问题,以及专利法碎片化的问题,由以下欧盟研究人员提出:Kristof Krenn, Giuseppe Martinico, Jorg Polakiewicz, Sionaidh Douglas-Scott, Steve Peers, Douwe de Lange, Tatiana Komarova。本研究的目的是对统一专利法院在未来法律实践中使用欧盟法律和其他法律来源的问题进行深入分析,并研究欧盟法院、统一专利法院和缔约成员国之间的联系及其在创建新法律框架中的作用。文章的主体。对欧盟专利法协调的分析一直是许多研究者关注的问题。例如,研究构成所谓“专利一揽子”的法律执行问题的Reto M. Hilty和一群作者明确地关注了法理学碎片化的问题,其要点是,一旦《统一专利法院协定》生效,几个司法机构将同时以其管辖权覆盖缔约国的领土。除了处理国内当局颁发的专利的国家法院外,以下机构将履行其职能:统一专利法院处理与欧洲专利有关的具有统一效力的案件,欧盟法院就统一专利法院的行动与欧盟法律的兼容性发布初步意见,欧洲专利局上诉委员会就行政诉讼作出裁决。法理学碎片化问题涉及到大量的问题,只有通过司法实践才能给出答案。如果我们把我们的观点转向理事会条例№1257/2012第7条,我们会注意到,该条赋予具有统一效力的欧洲专利财产的含义,这应该在所有缔约国成员国中得到平等承认。这方面导致了一个重要的结论,这将在本文后面讨论。结论及发展展望。综上所述,值得注意的是,统一专利法院开始运作,以及通过加强合作机制创造的立法生效的那一刻,对欧盟机构和统一专利法院来说都将是一个值得注意的事件,因为它有可能成为重新考虑欧盟与国际司法机构之间当前合作方式的强烈动机。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Correlation Between EU Ac Quis, Domestic Law and International Law in Light of Legal Governance of the European Patent with Unified Effect
Problem setting. The article is devoted to detection of the legal nature of the relationships between EU Member States’ domestic law and newly-created system of patent law governance, which comprises the Council Regulations 1257/2012 on implementing enhanced cooperation in the area of the creation of unitary patent protection and № 1260/2012 on implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements as well as the Agreement on a Unified Patent Court. The subject of this research are the potential challenges the enforcement of the EU law may pose to the Unified Patent Court, along with enforcing Contracting State’s domestic law and international treaties, binding to the Contracting States as well as potential threats that can emerge after the Unified Patent Court becomes operational, especially the threat of legal fragmentation in terms of patent relationships. Profound analysis of the rules, that set the procedure of using different types of legislation while hearing the patent disputes cases has been made. The legal opinions of the Court of Justice of the European Union concerning the autonomous judicial bodies and their influence on the EU law have been presented. Potential threats to the EU legal system’s integrity and possible ways of deterring them have been outlined. Comparisons between recent and previous legal problems concerning the field of the EU law integrity have been made. The main arguments of the Court of Justice of the European Union have been studied and the most durable ones have been stressed as the milestones of the future Unified Patent Court legal practice. Conclusions about the importance of domestic and EU law correlation in light of patent legal sphere have been made. The drawbacks of current EU legislation and the need for the Court of Justice of the European Union to reconsider its positions have been mentioned. Analysis of recent researches and publications. The problems of compiling EU rights and national rights of EU member states in the context of their use by EU institutions, as well as other bodies, in particular the ECHR, as well as the question of fragmentation of patent law, were raised by the following EU researchers: Kristof Krenn, Giuseppe Martinico, Jorg Polakiewicz, Sionaidh Douglas-Scott, Steve Peers, Douwe de Lange, Tatiana Komarova. Purpose of the research is to conduct a profound analysis of the problem concerning the use of EU law and other legal sources by the Unified Patent Court during its future legal practice and to study the bonds between the Court of Justice of the European Union, the Unified Patent Court and Contracting Member States and their role in the creation of the new legal framework. Article’s main body. The analytics of the EU patent law harmonization has been an object of attention of many researchers so far. For instance, Reto M. Hilty and the collective of authors, who studied the problem of enforcement of law, that forms the so-called «patent package», explicitly paid their attention to the question of jurisprudence fragmentation, the point of which is that as soon as the Agreement on a Unified Patent Court comes into force, several judicial bodies will cover the territory of the Contracting Member States with their jurisdiction simultaneously. Apart from the national courts, that will deal with the patents, issued by the domestic authorities, the following bodies will execute their functions: the Unified Patent Court on cases concerning the European patent with unitary effect, the Court of Justice of the European Union by issuing its preliminary opinions on the compatibility of the Unified Patent Court’s actions with the EU law and the Boards of Appeal of the European Patent Office by deciding on the administrative lawsuits. The problem of jurisprudence fragmentation entails a vast amount of problems, the answer to which can only be given by means of judicial practice. If we turn our view towards Article 7 of the Council Regulation № 1257/2012, we will notice that this article gives the European patent with unitary effect the meaning of property, that should be equally recognized throughout all the Contracting Member States. This aspect leads to an important conclusion, that will be discussed later in this paper. Conclusions and prospects for the development. To sum this up, it’s worth noting, that the beginning of the Unified Patent Court’s functioning, as well as the moment when the legislation, created by means of enhanced cooperation mechanism, comes into force, will certainly become a remarkable event both to the EU institutions and the Unified Patent Court, since it has the potential to become a strong incentive to reconsideration of current approaches to the cooperation between the EU and international judicial bodies.
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