Towards a Patent Juristocracy in Europe

This article is intended to begin the process of bridging the gap between the critical scholarship on the rise of juristocracies in liberal democracies and the IP scholarship on governance of intellectual property rights in Europe. It argues that the integration of the European patent system through the creation of the European Patent Organization (EPO) in the first instance and the Unified Patent Court (UPC) more recently is facilitating the rise of a patent juristocracy in Europe. It shows how the delineation of intellectual property rights in Europe has been handed over by governments to an autonomous, quasi-judicial technocracy at the EPO and reveals how the process of hollowing out economic and political factors in the grant of patents is assisted by the deference of national courts to the EPO and the creation of the Unified Patent Court. It suggests that, together, these developments pose a threat to democratic governance of the patent system in Europe because the delineation of intellectual property rights has inherent economic and political dimensions which are not reducible to technical legal issues of interpretation or technocratic expertise.