Report of the IP Commercialization Committee
H. Blöchle (CH), Chair
“Patent Package” of the EU Commission
Proposal for new Regulations of the European Parliament and of the Council on SEP, Compulsory licenses and SPC, 27th April 2023
The EU Regulations comprise 3 topics: Standard Essential Patents (SEP), Compulsory Licensing and Supplementary Protection Certificates (SPC). IPCC dealt with the first two and prepared a comment forwarded by the epi president to the EU Commission in August 2023. In general, epi welcomes the Commission’s thoughts and efforts to strengthen intangible assets including inventions and patents. However, the new Regulation should not burden European authorities without significant benefits for the economy.
The EU Regulations assign highly technical topics to EUIPO, an authority which is not familiar with such matter, neither are the representatives before the EUIPO. IPCC drafted detailed statements for both drafts listing lots of technical shortcomings. Obviously, the Regulations had been put together too hurriedly and with too less insight into the economic and legal background.
IPCC spend a lot of time to assess the various provisions dealing with a Union Register for FRAND terms and conditions, the proposed new SEP database, non-binding out-of-court dispute resolution, aggregate royalty determination, procedures for essentiality checks of SEPs and evaluation cost.
The European Compulsory licensing for crisis management is meant to replace the existing national rules. We pointed to the exceptional and sensitive nature of compulsory licenses and the open question what happens after the end of a crisis. Further the role of a newly established Advisory Body is unclear and royalty provisions are not practicable.
This work was done in cooperation with LitCom. All in all, the EU Regulations need substantive revision which can hardly be done before the EU elections in June 2024.