EU aims to be a global norm-setter regarding IP

By Francine Cunningham


As part of its mission to achieve technology sovereignty in Europe, the European Commission last week published an Intellectual Property (IP) Action Plan, which aims to drive economic growth by helping companies capitalise on their intangible assets. The Commission hopes to facilitate access to licensing and sharing of intellectual property by promoting data sharing. At the same time, it wants to bring clarity and predictability to the licensing of patents that are essential to technological standards, such as the 4G or 5G standards for broadband networks.

Gaps in the current framework

According to the Commission, the Covid-19 pandemic also highlighted certain dependencies on critical innovation and technologies, as well as the need to ensure that critical IP can be made available in time of crisis. The Action plan is designed to address a number of gaps and weaknesses in the current single market for IP, including fragmentation of Europe's IP system; difficulties for small and medium-sized businesses to access IP protections; costly and cumbersome licensing procedures for standard-essential patents (SEPs); counterfeiting and piracy taking advantage of digital technologies; and lack of fair play for businesses operating abroad.

Interface with new technologies

The particular challenges that new technologies have created for IP are examined in a new study on the implications of artificial intelligence (AI) on patent and copyright law. The Commission also announced that it is launching a study on the interaction between copyright and new technologies, which will examine issues related to the management of copyright data linked to protected content.

At a time when IP is sometimes characterised as a barrier to the development of AI, the Commission will also encourage the launch of an industry dialogue on IP, new technologies and evolution of the IP framework in the digital economy.

Furthermore, the Commission considers reviewing the Database directive with a view to facilitating the sharing of and trading of machine-generated and Internet of Things related data. Since its launch in February 1996, the Database Directive has received disappointing evaluations. It is believed to have had only minimal impact on the overall production of databases in Europe and the competitiveness of the EU database industry.

Complex landscape for SEPs

Despite issuing previous guidance on standard-essential patents (SEPs), which are patents related to technologies that are incorporated in standards such as 5G, the Commission notes that some businesses continue to find it difficult to agree on SEP licensing. This situation can frequently lead to disputes, in which patent holders claim that their SEP has been infringed and the other party complains that the patent holder has imposed unfair conditions on a licensing agreement.

Although currently, the biggest disputes seem to occur in the automotive sector, SEPs licensing is also relevant to the health, energy, smart manufacturing, digital and electronics sectors. In addition, the Commission has noted that the transition to 5G has brought with it a rise in the number of SEPs, which poses challenges in particular to new players, small and medium-sized businesses and start-ups.

To address this situation, the Commission plans to facilitate industry-led initiatives to reduce frictions and litigation among players in specific sectors.  Furthermore, the Commission will consider reforms to clarify and improve the framework governing SEPs, including new regulation if deemed necessary.

At a global level, the Commission's ambition is to be a "norm-setter, not norm-taker". With the protection of IP high on the geopolitical agenda, the EU has also declared that it will take more robust action to avoid foreign take-overs targeting critical IP assets.

Specific measures foreseen 

To improve the way IPRs are protected in the EU, the Commission plans to: 

  • support a rapid roll-out of the unitary patent system, to create a one-stop-shop for patent protection and enforcement across the EU (2021),
  • optimise the supplementary protection certificates system, to make it more transparent and efficient (Q1 2022),
  • modernise the EU legislation on industrial designs(Q4 2021),
  • strengthen the protection system for geographical indications for agricultural products and consider, whether to propose an EU protection system for non-agricultural geographical indications (Q4 2021),
  • evaluate the plant variety legislation (Q4 2022).

To boost the uptake and use of IP, the Commission plans to: 

  • provide, with the EUIPO, a scheme for IP SME Vouchers to finance IPR registration and strategic IP advice (Q1 2021),
  • roll out IP assistance services for SMEs in the “Horizon Europe” funding programme and expand it to other EU programmes (2020+).

To facilitate licensing and sharing of IP, the Commission plans to: 

  • ensure the availability of critical IP in times of crisis, including via new licensing tools and a system to co-ordinate compulsory licensing (2021-22),
  • improve transparency and predictability in SEP licensing via encouraging industry-led initiatives, in the most affected sectors, combined with possible regulatory reforms (Q1 2022),
  • promote data access and sharing via clarification of the Trade Secrets Directive and a review of the Database Directive (Q3 2021).

To fight IPR infringements, the Commission plans to: 

  • clarify and upgrade the responsibilities of digital services, in particular online platforms, through the Digital Services Act (Q4 2020),
  • strengthen the role of OLAF in the fight against counterfeiting and piracy (2022),
  • establish an EU Toolbox against counterfeiting setting out principles for joint action, cooperation and data sharing among right holders, intermediaries and law enforcement authorities (Q2 2022). 

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