SPESYVTSEVA O. Legal regulation of the Unitary Patent Protection in the European Union

The scientific work is the first in the national field of international law to provide a comprehensive coverage of theoretical and practical issues of legal regulation of unitary patent protection in the European Union, to study the development of relations between the EU Member States in the field of unification of patent protection, the unitary system of patent protection in the European Union and to analyse the mechanism of patent rights protection, including the newly established Unified Patent Court. The author analyses the prospects of Ukraine's participation in the unitary patent protection system of the European Union and the national legislation of Ukraine in the field of patent protection in terms of its harmonisation with EU legislation. It is stated that the unitary patent protection system in the European Union was the result of a compromise reached between the EU Member States after lengthy negotiations and was implemented through the use of the mechanism of enhanced cooperation. As a result of the study, a number of provisions characterised by scientific novelty were formulated. In particular, the thesis is the first to provide a theoretical analysis of the unitary system of patent protection in the European Union as a mechanism which will ensure even more favourable functioning of the internal market of the European Union without borders and will promote the development of economy and innovative technologies. The significance of the formation of a single economic and legal space, including the unitary system of patent protection in the EU, lies in its inextricable link with the process of formation and efficient functioning of the internal market in the European Union. It is proved that the unitary patent protection system in the EU is a special market-based instrument which guarantees the participants of the EU internal market the realisation of exclusive rights to a patented invention at the regional level. It is determined that after lengthy attempts to find a common EU solution to to establish a mechanism for a unitary patent protection system and a judicial mechanism for resolving disputes over patent infringement, a certain number of Member States have expressed their willingness to cooperate with each other to establish this system using a special EU mechanism - the enhanced cooperation mechanism. It is proved that enhanced cooperation has become a political incentive which has resulted not only in achieving the set goals, but also in a general increase in unity among the EU Member States and promotion of European integration in the field of patent protection. The article analyses Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection. It is stated that the enhanced cooperation in the field of establishment of the unitary patent protection system complies with EU law and all the conditions set out in the EU founding treaties for enhanced cooperation, namely: (a) the mechanism was used as a "last resort"; (b) the introduction of enhanced cooperation and the request to the Commission was initiated by 12 EU Member States; (c) the aim of the States was to promote the EU's objectives and strengthen the integration process in areas where it proved impossible to formulate a compromise solution and achieve a common result; (d) the application of the mechanism does not in any way prejudice the functioning of the internal market, the economic and social unity of the EU Member States, create discrimination and restrictions on trade between them or distort competition in the EU; (e) the mechanism is open to all EU Member States that are not parties to the mechanism but have the right to join the cooperation. It is determined that national and regional patent protection systems have become the basis for the formation of a unitary patent protection system in the EU, which aims to further unify EU patent legislation and create conditions for users of this system, thanks to which they will be able to achieve not only economic and financial results, but also generally contribute to the scientific and technological progress of the region. At the same time, the acts implementing enhanced cooperation in the field of establishing a unitary patent protection system in the EU are (a) Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of a unitary patent protection; (b) Council Regulation (EU) No 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements; (c) the Agreement on a Unified Patent Court signed on 19 February 2012.