From local diversity to transnational institutionalization: The emergence of the European Unified Patent Court – UNIFIED

To pursue the above-mentioned objectives, UNIFIED adopts a mixed-methods research design organized around four work packages (Table 2). The work packages are organized around the following purposes:
(1) to assess the fragmented institutional contexts of patent litigation in France, Germany and at European scale;
(2) to qualify local variations in institutional beliefs of patent judges on how to interpret the unitary legal text, and to jointly craft a common questionnaire for use across borders;
(3) to survey the relational infrastructure (networks) among and between patent judges and additional experts in France, Germany and at EU convergence events;
(4) to discern mechanisms of institutional convergence in judicial beliefs and practices for the generalization of a neo-structural theory of transnational institutionalization.
Both teams at Sciences Po and Heidelberg University will be equally and jointly involved in all work packages. We stress here the complementarity of the teams, in which PIs, post-doctoral and doctoral researchers from France and Germany will work closely together. Most of the time, the two PIs as well as two Post-Docs and two doctoral researchers will work together in bi-national ‘pairs.’ They jointly carry out the tasks of building the complex dataset needed to model the process of convergence and to enrich the theory with a neo-structural approach. Throughout the project, the complete teams will have four team meetings (two in Paris, two in Heidelberg) to reflect on the different problems raised by convergence and harmonization in each country, to compare cases, to cross-validate findings, to develop the questionnaire instruments from the qualitative panel, and to iteratively pull together the overall findings from the qualitative panel and the multilevel network analysis.

WP 1 Fragmented institutional contexts: literature review and database for France and Germany
Expert qualitative interviews have been conducted on the French side of the research team. Interviews were carried out at the Ministry of Justice, courts, private industries, and of legal professions (patent lawyers and patent attorneys). This helps reconstitute the organizational field of intellectual property regulation for patents. An online focus group survey was also conducted among the European patent attorneys and lawyers (120 participants to a CEIPI training Summer school) active in patent litigations. Outcomes: A completed draft on the French patent litigation system and the work of the judges; a completed paper on the historical trajectory towards the UPC (both from the legal and sociological perspectives); a completed paper on judicial geography of patent litigation in Germany; the database of main actors and organizations on a French and European level in the patent field (in progress) and the analytical survey results.

WP 2 Local variation in institutional beliefs: qualitative panel on how judges interpret unitary legal norms
For capturing variations of normative choices, both procedural and substantive, between France and Germany and for understanding how judges carry out the same tasks as “vertical linchpins”, i. e. by judging within their national as well as transnational (in this case European) framework, we carry out ongoing series of interviews both on French and German side and in addition, a case-level analysis is carried out. In particular, in order to capture the divergences between the interpretation of the similar patent-related issues by French and German judges and the possible convergence over time, the identical patent disputes, i.e. about the same patent and between the same parties, have been identified between the period from 2009 to 2020. The cases analyze differences in evaluations of “inventive step”, “novelty” and “industrial applicability” in patent infringement and patent validity disputes. 43 identical cases litigated in parallel in France and Germany are currently being analyzed for detecting divergences and the possible longitudinal convergence.

The WP 3: Relational infrastructure and convergence events: network surveys on patent judges)
Two-mode network datasets are being mapped to identify the core actors and the structure of relationships, both active nationally and at the Europe level, that organized and participated as speakers at UPC convergence events between 2009 and 2021. In terms of patent judges, we are waiting for the UPC preparatory committee to release the name of the first generation of UPC judges.

We will describe the relational and organizational mechanisms of institutional convergence in judicial interpretations, beliefs and practices at the national and comparative levels. By cross-validating and triangulating the evidence obtained from multiple methods in WPs 1, 2 and 3, we will elaborate on a theory of transnational institutionalization.

Marius Zipf, Johannes Glückler, Tamar Khuchua, Emmanuel Lazega, François Lachapelle, Jakob Hoffmann, ‘The Judicial Geography of Patent litigation in Germany: Regional Variation and Convergence in Legal Practice’, (submitted).
Emmanuel Lazega et al., “A Neostructural Approach to Transnational Institutionalisation: A Framework for Studying the Emergence of a European-Level Judiciary for Patents” (forthcoming).
Tamar Khuchua, ‘A Historical Perspective on Europe’s Legal Developments Towards the Unitary patent Package and the Unified Patent Court’ in A. Strowel, F. De Visscher, V. Cassiers (eds.) The Unified Patent Court: Problems, Possible Improvements and Alternatives (forthcoming, 2022).
Emmanuel Lazega, François Lachapelle, ‘Collegial Oligarchy and Democratic Deficit in Emerging Transnational Institution-Building – The Case of European Intellectual Property Judges Assembled at the Venice Forum (2009)’ in A. Strowel, F. De Visscher, V. Cassiers (eds.) The Unified Patent Court: Problems, Possible Improvements and Alternatives (forthcoming, 2022).
Tamar Khuchua, ‘The Future of the European Patent Judicial Design: In search for Uniformity’ (forthcoming publication of the PhD thesis).
Tamar Khuchua, ‘Historical Perspective on the Legal Developments of the Unitary Patent Package and the Unified Patent Court’ – the conference ‘The Unified Patent Court System: Remaining Weaknesses and Possible Adjustments’ – UCLouvain & Universite´ Saint-Louis Brussels, Brussels, Belgium (28 January 2022).
François Lachapelle and Emmanuel Lazega, ‘Collegial Oligarchy in Emerging Transnational Institution-Building The Case of European Intellectual Property Judges Assembled at the Venice Forum (2008 and 2009) – the conference ‘The Unified Patent Court System: Remaining Weaknesses and Possible Adjustments’ – UCLouvain & Universite´ Saint-Louis Brussels, Brussels, Belgium (28 January 2022).
Emmanuel Lazega, ‘Multilevel networks in transnational institution building: The case of the European Unified Patent Court’, SNAS cycle, University of Edinburgh, Scotland, (8 February 2022).
Tamar Khuchua, ‘The future of the European Patent Judicial Design: In Search for Uniformity’ – conference ‘Visions for Intellectual Property in Europe: The Role of Research’ – Commentator: Fidelma Macken, former judge at the Supreme Court of Ireland and the CJEU - University of Strasbourg (1 June 2021).
Tamar Khuchua ‘European Patent Judiciary in the Light of the Emergence of the Unified Patent Court: Challenges and Debates’ – Conference on IP law, Windsor Law, University of Windsor, Canada (March 2021).
Lazega, E. (2020), «L’usage dramaturgique de la culture juridique dans la construction d’une juridiction transnationale«, Droit et Société, 105(2) : 325-341

Although the European patent was established in 1973 to protect intellectual property across the European Union, to date there is still no unitary jurisdiction to litigate and enforce IP rights at European scale. UNIFIED focuses on the current process of institutional convergence between nationally fragmented IP regimes and the emergence of a genuine transnational institution: the Unified Patent Court. Given recent evidence of the differences in IP litigation outcomes between the EU member states, this project compares the two leading continental European IP regimes to answer two research questions: How do judicial beliefs in and interpretations of legal norms vary across the regional and national jurisdictions of France and Germany, and how do these beliefs and interpretations eventually converge to manifest a unitary jurisdiction? UNIFIED pioneers a neo-structural theory of institutionalization that integrates institutional and network approaches to account for the relational mechanisms that harmonize and enforce judicial beliefs, interpretations and practices. As part of a mixed-methods research design, a panel of two waves of qualitative interviews with patent judges draws the ‘colors’ of the variegated judicial beliefs and interpretations in France and Germany; while a set of formal network surveys at professional ‘convergence events’ discerns the relational mechanisms that produce a ‘change in these colors.’ UNIFIED is in a unique historical position to study the emergence of the Unified Patent Court as an in-vivo case of convergence from a geographically fragmented variety in judicial institutions. UNIFIED will collect original primary data, both substantive and relational, on an elite judicial field in Europe, and it will contribute to a better understanding of how transnational institutions emerge, in the process, from the origin of interregional judicial diversity. Creating a legitimate and effective unitary IP regime will be major advance for the European single market to propel and protect future technological innovativeness. In terms of socio-economic relevance, UNIFIED is looking for ways in which a common legal institution could help France and Germany boost the strength of their respective national innovation systems by jointly providing and enforcing a common perspective on patents.