Open Access

Letizia Tomada

• The implementation of the Unitary Patent Package will represent the result of the evolution towards the unification of the European patent system. During the journey towards patent harmonisation in Europe, it is however important that the regulatory framework of the patent system addresses the needs of the different market players, including start-ups. Their protection has been designated as one of the main policy objectives of the establishment of the Unified Patent Court (UPC). Nevertheless, it is not yet clear to what extent the establishment of the UPC can have an influence on the innovation of start-ups. The thesis’ hypothesis is that some features of the UPC design may create certain asymmetries which bring strong established businesses in a more advantaged position than financially constrained ones. The thesis therefore answers the following main research question: “To what extent does the establishment of the UPC influence the innovation of start-ups?” The question is dividedThe implementation of the Unitary Patent Package will represent the result of the evolution towards the unification of the European patent system. During the journey towards patent harmonisation in Europe, it is however important that the regulatory framework of the patent system addresses the needs of the different market players, including start-ups. Their protection has been designated as one of the main policy objectives of the establishment of the Unified Patent Court (UPC). Nevertheless, it is not yet clear to what extent the establishment of the UPC can have an influence on the innovation of start-ups. The thesis’ hypothesis is that some features of the UPC design may create certain asymmetries which bring strong established businesses in a more advantaged position than financially constrained ones. The thesis therefore answers the following main research question: “To what extent does the establishment of the UPC influence the innovation of start-ups?” The question is divided in further sub-questions, which correspond to the main Chapters. First, the thesis addresses what the interplay between start-ups, innovation and the patent system is, thereby exploring the start-ups’ landscape, the extent at which they patent and whether their position has been taken into account during the negotiations and development of a unified system of patent litigation. The study shows that due to the inherent characteristics of the start-up organisation, these businesses have a high innovative potential and that although only few start-ups seek patent protection, patent litigation can severely hinder their innovative activities. Secondly, the thesis asks whether the establishment of the UPC strikes an appropriate balance of the interests of start-ups in the role of plaintiffs and defendants. In this context, it analyses the specific features of the system of unified patent protection which are deemed to be more relevant for start-ups and for their innovation activities and namely, the proximity to the venue of litigation, the implications of the territorial scope of UPC decisions, the costs of litigation before the UPC and it questions whether alternative dispute resolution methods represent a useful tool for start-ups. Overall, the analysis shows that the main features of the UPC design present several imbalances and asymmetries that tend to favour strong established businesses especially when in the position of potential plaintiffs. This poses a threat to the further development and implementation of the innovative activities of start-ups. It results that the asymmetries and their respective consequences can be, to a certain extent redressed through specific and tailored legal amendments and interpretation of provisions, as suggested for each specific feature. The thesis further explores what the systematic implications of the UPC asymmetries on start-ups are and which one could be an alternative, more balanced, system. In fact, a solution which could be capable of re-equilibrating more comprehensively a great part of the imbalances, would require a more complete remodelling of the overall system. The study shows that the implementation of an alternative system with characteristics more aligned to the litigation system currently existing for EU trademarks would help to overcome the issues caused by the analysed imbalances and therefore mitigate their consequences, thereby safeguarding start-ups’ innovation activities. The research has been carried out from September 2017 to October 2020.…