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1.
The Regulation (EU) No 1257/2012 is in no way intended to delimit, even partially, the conditions for granting European patents – which are exclusively governed by the EPC – and it does not incorporate the procedure for granting European patents laid down by the EPC into EU law. The principle of effective judicial protection is hence not undermined by the administrative procedure preceding the grant of a European patent.
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2.
Unitary patent protection is apt to prevent divergence in terms of patent protection in the participating Member States and, accordingly, provides uniform protection of intellectual property rights in the territory of those States. Thus, Article 118 TFEU is an adequate legal basis for the regulation.
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3.
The assignment to Member States of the power to set the level of renewal fees and to determine the share of distribution of those fees does not violate EU law, as it is for the Member States to adopt all measures of national law necessary to implement legally binding Union acts. It inevitably falls to the participating Member States, and not to the Commission or the Council, to adopt all measures necessary for the purposes of carrying out those tasks, given that the EU – unlike its Member States – is not a party to the EPC.
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Kingdom of Spain v. European Parliament and Council of the European Union Regulation (EU) No 1257/2012; Treaty on the Functioning of the European Union, Arts. 118(1), 291. ‘‘Spain v. EPUE I’’. IIC 46, 588 (2015). https://doi.org/10.1007/s40319-015-0372-6
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DOI: https://doi.org/10.1007/s40319-015-0372-6