The European Union’s Intellectual Property Action Plan

The IP Action Plan

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The IP Action Plan itself will be a Communication from the Commission setting out their plan for future legislative and non-legislative initiatives. The Commission states in the Roadmap that the overall objective of the Action Plan “will be to ensure that the EU has in place well-calibrated and modern IP policies that contribute to the resilience and competitiveness of the EU’s economy and facilitate the digital and green transition, benefitting the EU society as a whole.” In particular, the Commission envisions five primary areas of focus, each entailing a different set of initiatives:

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• Upgrade the System of IP Protection

• Promote a Better Uptake and Deployment of IP

• Promote Better Licensing and Sharing IP-Protected Assets

• Fight IP Theft

• Promote a Global Fair Play

 

The review of the IP framework is comprehensive, with a view towards strengthening many areas such as patents, copyright and designs, while expanding the scope of IP protections in areas such as artificial intelligence, data, and geographical indications for non-agricultural products. For those businesses in sectors such as pharmaceuticals, technology, agriculture and the creative industries, the IP Action Plan should be a top priority. Specifically, the Commission will upgrade the system of IP protection with a number of key initiatives focusing on:

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• Enabling the Unitary Patent system to offer a “one-stop-shop” for patent protection and enforcement;

• Considering ways to make the SPC system less fragmented

• Assessing ways to modernise the EU legislation on industrial designs

• Establishing a European approach to AI and IP protection

• Exploring ways to strengthen the protection system for GIs for agricultural products

• Considering the introduction of an EU protection system for non-agricultural products

• Ensuring the Copyright Directive is implemented promptly

 

Below we identify three areas which different industry sectors may give special attention towards:

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A Unified Patent System

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As the most fragmented area of the IP framework, the Unitary Patent is a key priority of the Commission after almost a decade of stagnation.[2] A renewed push by the Commission is both welcome and necessary following the rescinding of the United Kingdom from the Unitary Patent system. Enforcement of patent rights remains largely the prerogative of national member state jurisdictions, due to the fact that the European Patent Convention is a distinct treaty from the EU. This dramatically increases the cost of patenting in the EU. The Unitary Patent system will remedy this by creating a harmonised system for EU wide (except Spain and Croatia) enforcement of patents rights that will complement the granting of European patents. A unitary patent will grant the holder a patent for the entire region of the EU, whereas the existing European patent system grants a bundle of patent rights applicable in each of the jurisdictions. This should rationalise a fragmented system that has been 40 years in the making.

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EU Supplementary Protection Certificates

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The system for Supplementary Protection Certificates (SPCs) is also another area of fragmentation that the Commission is considering for improvement. SPCs exist to allow patent holders in certain industries to extend the grant of a patent beyond 20 years, for up to a maximum of five years.[3] Pharmaceuticals, for example, must go through many years of testing and regulatory compliance before they can be made accessible to the market. Thus, an SPC is a specific grant that allows the patent holder to benefit from the full term of its patent grant and recoup its investments into research and develop.[4] The Commission identifies in the Roadmap that the current system is fragmented as protection is only available at national level. The Commission will therefore consider how an EU SPC system could be implemented which will link with the unitary patent system when it comes into effect.

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Strengthening and Expanding Geographical Indications

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GIs are key for the EU’s future trade and agricultural policies and are protected in the EU in a similar manner as trademarks. As such, the EU has for decades now championed the system of geographical indications as a means to promote value for European producers and consumers. Currently there exist three types of GIs:[5]

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• Protected designations of origin (PDO) for wines and agricultural food product names. To be recognised as a PDO, every part of the production, processing and preparation process must take place in a specific region;[6]

• Protected geographical indication (PGI) also for wines and agricultural and food product names. PGIs can be given if at least one of the stages of production, processing or preparation takes place in the region.

• GIs for spirit drinks and aromatised wines have to have at least one of the stages of distillation or preparation taking place in the region. However, raw ingredients do not need to come from the region.[7]

 

With the latest IP Action Plan, the goal is to further strengthen this system and to even expand it beyond foodstuffs so that other categories of traditional knowledge can be protected from unfair competition. The Commission has identified that the GI system is too cumbersome for users and in some instances, protection is unavailable. This puts European producers at a disadvantage to international competitors who can imitate and benefit from the reputation of the original products produced in the EU.