EU Commission publishes roadmap for an IP Action Plan

Feedback open until 14 August 2020

The EU Commission under President von der Leyen has just published a new roadmap for initiatives to improve the protection and procedures of intellectual property rights (IPR). The roadmap is available here.

Remarkably, this first draft already identifies some areas of the IP spectrum where there is an actual need for improvement. The remedies envisage are not only legislative but also include technical initiatives (e.g. online platforms) or information campaigns. However, as the name suggests, the process is still in its infancy and the implementation of effective measures is probably a long way off politically.

The first finding to be welcomed from the point of view of small and medium-sized enterprises (SMEs) is that access to IP protection for these players should be facilitated. According to a study, only 9% of SMEs have registered IP rights, which is not only due to the costs involved, but above all to a lack of information. This is in line with our experience as advisors of SMEs. For example, clearing the freedom of rights as well as the registration IP rights are often considered complex and opaque. IP topics often remain overlooked for too long until “sufficient capital” is available, which often has the opposite effect and later leads to higher costs or makes it more difficult to enforce the rights or achieve the desired legal structure (e.g. license agreements).

In the area of copyright, which is only partially harmonised across the EU, it is difficult to understand overlapping property rights: E.g. whether, registration of an industrial property right (trademark or design) is required, in case of “industrial design” works for which (automatic) copyright protection may exist.

In the technical field, the system of patent protection is often considered expensive from the perspective of SMEs; at the same time, however, the alternative of protection as a trade secret, which is suitable in some cases, has not yet arrived in the minds and, above all, in the daily working life of companies.

In addition to a reduction in official fees, another central idea is set forth in the roadmap: Better access to information on IP protection specifically for SMEs, especially in the form of the promotion of advice on IP already in the context of financing programmes for SMEs or start-ups.

Other points identified in the roadmap include:

  • Further harmonisation of the IP system within the EU: Greater harmonisation would be desirable in the areas of copyright, industrial designs, supplementary protection certificates in the pharmaceutical sector and rules on geographical indications for non-agricultural products. Furthermore, there is a lack of a uniform approach to the protection of inventions by artificial intelligence (AI), which could prove to be a competitive disadvantage for Europe.
  • The project of an EU unitary patent is mentioned, although it has currently been pushed into the far distance by the withdrawal of the UK’s ratification. But, at least in our view, especially for SMEs, the “conventional” patent system of centrally administered and nationally validated patents by the EPO may in any case be more effective and cost-friendly.
  • Support of the “green economy” through the IP system, for example through more clarity of the IP implications of 3D printing.
  • Better tools for the licensing of IP rights (e.g. for standard essential patents) and clarification of the legal interaction in the provision of data against payment.
  • Stronger fight against product piracy and further clarification of the obligations of platforms and intermediaries to cooperate (e.g. Facebook, Amazon).
  • Establishment of the EU as a setter of global standards and cooperation on their enforcement in non-EU countries to ensure competitiveness.

Anyone has the opportunity to submit feedback directly online to the Commission by 14 August 2020 under the link above.

Gassauer-Fleissner is very interested in your questions or suggestions on these topics and is available for discussion.