New EU Patent Rules Proposed by the European Commission
The adoption of a unified Supplementary Protection Certificates (“SPCs”), new rules for Standard Essential Patents (SEP), and a new mechanism for compulsory licensing of patents in crisis conditions in the EU are all suggested in a newly published draft by the European Commission (EU Commission).
The EU Commission has suggested a unitary SPC for pharmaceuticals and plant protection goods as an addition to the unitary patent system. Until the Unified Patent Court takes effect on 1 June 2023 and the plan has been accepted by the European Parliament and the European Council, an SPC can extend a patent for up to five years, although it is presently only available on a national level. The idea is to make applying for Unitary Patents (or European Patents with Unitary Effect) more appealing to the pharmaceutical businesses. The European Union Intellectual Property Office (EUIPO) will be in charge of enforcing the new law.
In order to support and ensure the transparency of the Standard Essential Patents (SEPs) system, the plan also calls for the creation of a “Competence Centre” inside the EUIPO. Technology that has been deemed necessary for the application of a technical standard that has been adopted by a standard development organization is protected by SEPs. By guaranteeing that both EU SEP owners and implementers develop in the EU and that end users profit from the most recent product standards at fair and acceptable pricing, the proposed framework seeks to establish a balanced system.The center would also manage databases, create policies for SEP essentiality tests, and decide whether to provide FRAND (Fair, Reasonable, and Non-Discriminatory) licenses.
Finally, a new EU-wide Compulsory Licensing mechanism is introduced under the proposed new regulations. In times of emergency, mandatory licensing allows a government to sanction the use of a patented innovation without the patent holder’s approval.
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