Lobbying by UNION OF EUROPEAN PRACTITIONERS IN INTELLECTUAL PROPERTY

UNION OF EUROPEAN PRACTITIONERS IN INTELLECTUAL PROPERTY

UNION-IP

Study problems relating to the protection of intellectual property and to the profession of the members of the UNION in the European field, to come to conclusions on these problems, and to convey these conclusions to the authorities and other interested paties.

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ID: 041311320851-72

Lobbying Activity

Response to Intellectual Property Action Plan

14 Aug 2020

UNION-IP is an association of professional practitioners in the field of Intellectual Property with members in 31 different European countries. One of the aims of our association, i.e. to work on current and future developments in Intellectual Property in Europe, inspired us to live up to your request and to forward the following comments. UNION-IP welcomes this IP Action Plan initiative. Several of the initiative’s aims indicated in section B. of the Initiative’s Roadmap are addressed within the context of patents or related technological rights. The upgrade of the EU’s system for IP protection is definitely a competitivity challenge to be addressed. UNITARY PATENT SYSTEM A Unitary Patent system can be a crucial feature of such upgrade, reducing the formalities of the present validation procedure within the EU. Yet, despite such system would be of interest, UNION-IP considers that two aspects which have not yet been specifically addressed should first be pursued: • robustness: a Unitary Patent system, which has been under discussion for decades, should be sufficiently strong so that it fulfils the goal of providing a reliable protection path within the EU. The withdrawal of the United Kingdom from the EU and the constitutional hurdles in Germany are clear signs of fragility and show that, in order to move forward, only a lasting, robust and inclusive treaty - another treaty -, if put into action, could reach success. Alternatively, it is considered that more pragmatic ways of achieving the stated goals should be evaluated, removing the focus from EU wide regulations. It is believed that i) the harmonisation of validation procedures, and ii) the extension of the London agreement to more countries would be balanced alternatives of reaching the mentioned objectives. • balance: the users of the IP system are not homogeneous and may take different stances as regards the direct or indirect usage of IP. In fact, and as regards the costs of the current validation system vs. a Unitary Patent system, companies are already cost savvy, selecting which are the relevant states for the patent to be validated and maintained. On the other hand, a Unitary Patent system will quite likely lead to more patent rights in place across the signatories and, therefore, less freedom to operate, which consequently leads to an increase of litigation. In addition, numbers of 2015 (Eurostat 1 2) show that EU SMEs employ two-thirds of the overall non-financial business economy and generate over half of the value added at factor cost of over. Yet, only 18 % of the applications filed before the European Patent Office in 2019 (EPO 3) are filed by SMEs and individual inventors (which do not qualify as SME). Thus, a system which includes several key features directed for SMEs allows to preserve and foster the EU’s business/economic tissue. UTILITY MODELS Furthermore, and within the same context, UNION-IP is of opinion that also other types of rights should be taken into consideration. Utility models exist in most EU countries but are mainly treated as a fallback position from patents, and therefore not so commonly used. The absence of utility model protection in some EU countries can be very disconcerting for the users (and practitioners). Moreover, the respective law and practice in the countries which do have utility models are quite diverging. At least the harmonisation of the applicable law as regards utility models is seen as beneficial in order to improve the certainty as regards this type of right, as well as their usage. SUPPLEMENTARY PROTECTION CERTIFICATES Regarding Supplementary Protection Certificates (SPC), UNION-IP considers that – as referred and for the same reasons mentioned for the Unitary Patent system – any system to unite the present national route should be robust. A relevant question is related to which would be the official body to grant Unitary SPC applications ... CONTINUED IN THE UPLOADED DOCUMENT.

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