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Intellectual Property

Digital Agenda for Europe (DAE)

The Digital Agenda for Europe (DAE) is part of Europe 2020's Innovation Union and calls for the "digital transformation" of EU government, business and social infrastructures through the dissemination of technology. EU industrial technologies are prioritised in the promotion of research and innovation activities and are, therefore, instrumental in achieving the Europe 2020 goal of "smart sustainable and inclusive growth."

A necessary factor in encouraging reseach and innovation in technology is intellectual property protection. This is why the DAE outlines a coherent EU-wide Intellectual Property Rights (IPR) framework, while continuing to support the efficient dissemination of knowledge and technology among large public research organisations. Comprised of seven core pillars, the DAE promotes this uniform system for protection of intellectual property rights, ranging from industrial property to copyright and related rights, constitutes the foundation for economic creativity, innovation and competitiveness.

Under the first pillar of the DAE, the "Digital Single Market," a true single market for on-line content and services is also set to emerge, including borderless and safe EU web services and digital content markets and the management of intellectual property rights.

Under this first pillar, the Commission aims to:

  • Simplify pan-European licensing for online works and to develop online services;
  • Strike the right balance between IPR protection an public access to content and knowledge, and;
  • Preserve orphan and out-of-print works, whose authors, themselves, are not known and cannot be contacted to obtain copyright permission, in order to stimulate the availability of a large body of copyrighted material (in the framework of the online platform Europeana).

Upon the implementation of the new EU framework programme for the period of 2014-2020, intellectual property rights will continue to be outlined and protected in the context of the DAE.

The following aspects of the DAE reveal how IPR will be protected under Horizon 2020:

  • Participants in Horizon 2020 projects should not be required to  provide unrestricted, open access to research data and other results (from other funded research under Horizon 2020);
  • Project partners should have the full rights to their intellectual property, without requiring their partner’s permission to use or transfer;
  • The Commission's Joint Research Centre will be the key actor in overseeing the dissemination of its results and the management of IPR for Union institutions and bodies beginning in 2014.

The European Patent Convention

Patents, in particular, stimulate economic and technological development, and promote competition by creating a financial incentive for research and invention. Protection of intellectual property is covered by a range of international conventions, most of which are implemented by the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO).

European Patent Convention

The granting of "European" patents has historically taken place within the legal system provided by the European Patent Convention (EPC). The EPC is a multilateral treaty providing a legal framework and unified procedure for the management of patents in all contracting states. It is the legal basis for the European Patent Organization and its executive organ, the European Patent Office (EPO). However, granting of a patent under the EPC does not entail the granting of a unitary right, rather a group of essentially independent patents that are enforceable and revocable at the national level.

Established in 1973, the EPC has evolved over time in a perpetually changing European patent landscape. Legislation for the European Patent Convention 2000 (EPC 2000) was signed in Munich on November 29, 2000. This created a revised version of the EPC which entered into force on December 13, 2007. The EPC 2000 provided a big step towards a more flexible and user-friendly structure, while keeping in line with the latest developments in international patent law. With its high degree of procedural flexibility and legal compatibility, it was designed to be amended easily in the context of future developments in patent law and litigation.

The latest rule changes to the EPC took effect on April 1st 2010. The changes, which aim at improving patent quality and accelerating patent examination, require applicants to elect subject matter and address claim objections at a much earlier stage of prosecution. They also reduce the time period in which divisional applications can be filed.

A Community Patent

A "Community Patent" was originally proposed by the Commission in 2000 under the Lisbon Strategy (the title would later change to “EU patent” under the Lisbon Treaty). Negotiations subsequently stalled in 2004 and it was not until 2006 that the Commission re-launched the process with a consultation on how future action in patent policy could best take stakeholder’s needs into account. This culminated in a 2007 Communication on “Enhancing the patent system in Europe.”

A significant milestone later came at the Competitiveness Council on the 4 December 2009, where conclusions on an enhanced patent system in Europe were unanimously adopted. The agreed package covered major elements for bringing about a single EU patent and establishing a new patent court in the EU, making it less expensive for businesses to protect innovative technologies and making litigation more accessible and predictable. However, this did not suffice in the end. While Member States could agree on most issues, the translation arrangements remained a sticking point, as Spain and Italy opposed the three languages solution (English, French and German, the working languages of the EPO) to which the other Member States had finally agreed.

To bounce back from this latest failure, and to sidestep the Spanish and Italian opposition, twelve Member States (Denmark, Estonia, Finland, France, Germany, Lithuania, Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the United Kingdom) presented a request for an enhanced cooperation on patent legislation at the end of November 2010. The Commission then presented, on 14 December 2010, its formal proposal for a Council decision to set up enhanced cooperation with a view to introducing an EU patent and circumventing the stalemate on translation rules. Internal market and services Commissioner Michel Barnier commented that on average, inventors only validated and protected their patents in five of the 27 member states because of high costs, adding that the situation was unacceptable.

The Unitary Patent

On 11 December 2012, in the Parliament's first reading on the Council's proposals regarding these two draft EU Regulations, the European Parliament voted positively to adopt all three proposed regulations to form the new unitary patent system (the regulation on a unitary patent for Europe, the language regime and the formation of a new unified patent court system). These draft regulations were accepted, with the exception of Italy and Spain, under the EU's legislative procedure by 25 EU Member States. The Council of the European Union is required to approve the Parliament's decision, which will be followed by a final requirement for each EU Member State to ratify the decision.

Although the regulations entered into force on 20 January 2013, they will only apply from 1 January 2014, or the date of entry into force of the Agreement on a Unified Patent Court.

The European Patent Office (EPO) has been asked by the EU member states to administer the unitary patent system. The unitary patent - or "European patent with unitary effect" - is a European patent, granted by the EPO under the rules and procedures of the European Patent Convention, to which, upon request of the patent proprietor, unitary effect is given for the territory of the 25 Member States participating in the unitary patent scheme. The EPO claims that, with the unitary patent, the patent-granting system will be truly "supranatural" in nature and aim. Not only will it provide a simplified patent procedure at a lower cost, the unitary patent system will also make patent protection more accessible (especially to SME's), increase legal certainty and enhance Europe's attractiveness towards international investors.

The development of a unitary patent entails an equally intensive discussion with regards to a unified patent court (UPC). Under this future system, a unitary patent will be automatically valid throughout the Union, in the EPO language it is granted, under a unitary litigation system. The Agreement on the Unified Patent Court took place the 19 February 2013 and was signed by 24 EU Member States (it will need to be ratified by at least 13 states to enter into force). This agreement would create a specialised patent court with exclusive jurisdiction over both European as well as Unitary patent litigation. The UPC will comprise of a Court of First Instance, composed of a central division (with a seat in Paris and two sections in London and Munich), a Court of Appeal, located in Luxembourg) and a Registry.

The major difference between the unitary patent and the existing European patent will be in the post-grant phase, when the patent proprietor decides on what geographical coverage is needed. After the patent is granted, the patent proprietor can opt for either of the following: a European patent (characterised by individual "territorial protection"), or a unitary patent (with unitary territorial protection in all the states participating in the new co-operation scheme).

Global Challenges

The European Patent Office (EPO) has made it a top priority to maximise the dissemination of patents, not only as a form of legal protection, but as a source of technical information (e.g. space and medical technologies) for scientists and investors. This priority was promoted through a wide range of EPO-hosted sessions during the conference, EU Science: Global Challenges, Global Collaboration (ES:GC2), which was organised by ISC Intelligence in Science from the 4th through to the 8th of March 2013. This conference was held at the European Parliament in Brussels and provided a unique platform for members of industry, research and academia, policy makers and decision makers to address the major issues and developments in their respective fields. 

In its key plenary session, Patents and Innovation, the EPO invited scientists, academics and members of industry and business to attend an interdisciplinary panel discussion on the role of patents in driving European innovation. The discussion was targeted to scientists and investors, to motivate them to pursue patent protection for their technical innovations in Europe. The panellists addressed a comprehensive set of recommendations to improve this link between patents and innovation. These recommendations included the legal and commercial implications of the EPO’s unitary patent for Europe, against decentralised national patent law. There was a general push from the panel to make patent information more accessible to scientists and inventors, universities, stakeholders and companies throughout Europe to use patents as a reliable proxy to measure innovative capacities of technical inventions (e.g. nanotechnology or green technology). These recommendations were strengthened by the EPO’s Winner of the European Inventor Award 2012, Josef Bille’s, of the University of Heidelberg, presentation of his patented device for laser eye surgery.

In addition to hosting a plenary, EPO involvement in ES:GC2 was characterised by a wide variety of events: Drop-in Sessions with EPO Patent Examiners on Patent Information, Patents for use in Medical Technology and Space Technology, as well as Technical Sessions titled
Patent Information to Support Research, Bringing Research to Market and Your Invention: Protect and Profit.