The European Commission adopted an intellectual property Action Plan that seeks to support the EU’s recovery and make its economy more resilient.
The European Commission’s (EC) intellectual property (IP) Action Plan of 25 November 2020 emphasises the increasing importance of intangible assets like brands, designs, patents and data in today’s knowledge economy. According to the document, IP-intensive industries account for 45% of the EU’s GDP and 93% of all EU exports. Many of Europe’s industries cannot thrive without effective IP protection and tools to trade intangible assets. The EC’s New EU Industrial Strategy of 10 March 2020 emphasised the need for EU IP policy to help uphold and strengthen Europe’s tech sovereignty and promote a global level playing field. On 10 November, the Council of the EU had adopted Conclusions, inviting the EC to present proposals for the future EU IP policy (see SwissCore article). The EC has now delivered an Action Plan that aligns closely with the Council Conclusions, especially through its strong focus on SMEs. The policy document sets out the reforms and regulatory actions that the EC envisions over the course of the next two years to further strengthen its IP system.
When presenting the Action Plan in late November, Commissioner for the Internal Market, Thierry Breton, pointed out the need for action: “Europe is home to some of the world’s leading innovations, but companies are still not fully able to protect their inventions and capitalise on their intellectual property.” According to Breton, it is the EC’s goal to overhaul the EU’s IP system in order “to strengthen Europe’s ability to develop next generation technologies, reflect advances in data and AI; allow companies to quickly pool their knowledge in times of crisis, and support Europe’s path towards economic recovery and the green transition.” The new Action Plan focuses on the following five aspects: (1) Improving the protection of IP, (2) boosting the uptake of IP by small and medium-sized companies (SMEs), (3) facilitating the sharing of IP, (4) fight counterfeiting and improve enforcement of IP rights, and (5) promoting a global level playing field.
The Action Plan proposes to upgrade a series of existing IP tools, for instance by improving the supplementary protection certificates (SPC) for patented medicinal and plant protection products and by modernising EU design protection. Another goal of the Action Plan is to further strengthen the protection of agricultural geographical indications (GIs) and to consider the feasibility of a GI protection system for non-agricultural products at EU level. The EC also plans to start an industry dialogue on the impact of new technologies like artificial intelligence (AI) and blockchain on the IP system. To make access to effective IP protection easier for companies, the current fragmentation and complexity of the IP system in the EU should be reduced. Thus, the Action Plan calls on Member States to implement a unitary patent system with a one-stop-shop for patent protection as well as enforcement across the EU. The EC is ready to support a rapid rollout of this unitary patent system already in 2021.
An important part of the Action Plan constitutes its support for SMEs as currently only 9% of all SMEs across the EU file for IP protection. To change this, the Action Plan foresees specific measures to improve information and advice. In addition to the focus on SMEs, the EC intends to systematically support participants of EU funded research and innovation programmes to improve their valorisation of IP rights. This should help counteract current challenges like for instance in the field of AI: Although 26% of high-value research publications on AI come from Europe, only 13% of the top applicants and 7% of businesses engaged in AI patenting worldwide are European. The transparency in the licensing of standard-essential patents (SEPs) should be improved as they constitute an important element for the digital transformation, especially in the case of connected cars and other “Internet of Things” products.
Furthermore, the Action Plan intends to provide better tools to fight the import of counterfeited and pirated goods, which makes up more than 6% of the EU’s GDP. In the context of the upcoming Digital Services Act package, the EC plans to establish an EU anti-counterfeiting toolbox to facilitate effective cooperation between IP right holders, intermediaries like online market places as well as law enforcement authorities. In addition to this focus on imports, and given the EU’s IP-rights-intensive export mentioned above, the EC wants to better support EU companies operating in third countries. To this end, the EC plans to counter unfair practices committed by third country players, like industrial espionage or attempts to misappropriate IP in the context of R&D cooperation.