The Unitary Patent Court from a Private International Law Perspective

“Some people see things as they are and ask 'why'? Others dream things that never were and say 'why not'?” This famous sentence from G. B. Shaw describes the aim of this work accurately. The many failures in the establishment of a European patent system should not discourage the legislator from finalizing the patent reform, because the only certain so far is that a reform of the European patent system is necessary. Indeed, the historical analysis of cross-border patent litigation in Europe shows that its evolution has failed to provide the legal tools required by our interconnected, single, market. Nowadays, cross-borders infringements constitute the rule rather than the exception, and a national response is not satisfactory. However, to support the reform of the European patent system does not mean to accept the current Unitary Patent Package indiscriminately. From the perspective of private international law, several problems should be addressed. Among other flaws, the transitional period, for how it is envisaged at the moment, will raise more problems than benefits. Furthermore, the competence of the UPC central divisions on the subject-matter is not convincing, and it will not work in the long run. After Brexit, the project is currently at a standstill, but every cloud has a silver lining. Since it will be arguably necessary to amend the UPCA, at least Art. 7(2), the current stall should be seen as a chance to solve the crucial flaws of the reform. If we will be able to transform Brexit into a phase for improvement, it may ultimately lead to a more perspicuous patent law, and thus, more innovation and better business conditions for Europe