Australia, the European Union, Japan, Switzerland, Chinese Taipei and the United States requested the Secretariat of the World Trade Organization (WTO) to place an item on the agenda of the November 2016 TRIPS Council agenda entitled – “Intellectual Property and Innovation: Regional Innovation Models. On 9 November 2016, the European Union delivered the following intervention on regional innovations models. Intellectual Property and Innovation have been on the agenda of the TRIPS Council since 2012.
IP AND INNOVATION: REGIONAL INNOVATION MODELS
The European Union strongly supports regional integration in the area of intellectual property and innovation, because it fosters better understanding and political and economic links between neighbouring countries. The EU has put in place many successful models for regional innovation, both in terms of legislation, jurisprudence and the management of IP rights, since the European Union itself is an excellent example for regional integration.
The European Union has a law which is harmonized to a great extent in the area of intellectual property, which ensures legal certainty and predictability for business and rightholders, unlike legal fragmentation along national borders. The European Court of Justice plays also an important role in ensuring the consistency of the EU law by interpreting it to make sure it is applied in the same way in all EU Member States. National courts of EU Member States are required to ensure that EU law is properly applied, and when they are in doubt about the interpretation or validity of an EU law, they can ask the Court for clarification (preliminary ruling). The same mechanism can be used to determine whether a national law or practice is compatible with the EU law. Infringement proceeding can be started against a national government for failing to comply with EU law. The legal harmonization and the uniform jurisprudence are the pillars of that in the EU’s territory, the law is applied and interpreted consistently, so that it is predictable and ensures legal certainty.
One of the recent examples for regional innovation in the EU is the unitary patent and the establishment of the Unified Patent Court. The unitary patent is a legal title that will provide uniform protection across 26 EU countries. The new EU law will also set up a Unified Patent Court that will offer a single, specialized patent jurisdiction. The payment and management of the renewal of the patents, as well as the registration of the patents and the related rights will be managed centrally by the European Patent Office with respect to the territory of the participating MS. These new EU laws will improve the framework conditions for business to innovate by creating a unified patent system in the EU.
The unitary patent protection will make it possible for inventors (individuals, companies or institutions) to protect their invention in 26 EU countries on a one-stop-shop basis by submitting a single patent application. After the patent is granted, there will be no need to validate it in each country, which will save time and money for the applicants. Unitary patent protection will make the existing European system simpler and less expensive for inventors. It will end complex validation requirements and drastically limit expensive translation requirements in participating countries. By reducing the translation and publication costs, simplifying the maintenance of patents (renewal) and simplifying the registration of transfers, licensing agreements and other rights the unitary patent will attract more foreign direct investment to the EU and thus contribute to growth and jobs. It is also expected to stimulate research, development and investment in innovation. Unitary patent protection will also protect inventions better than the current system. Due to the prohibitive costs involved in the national validation of European patents, many inventors currently only patent their inventions in a handful of countries. This makes inventions less valuable as the lack of protection in other countries allows them to be copied more easily. The unitary patent will increase SMEs’ access to patent protection; increase the scope of patent validations and knowledge dissemination. Easier and cheaper access to patents in Europe will result in an increased number of innovative SMEs. SMEs have a major role in job creation; they ensure 2/3 of private sector jobs. The increase in the number of new business, therefore, can be expected to have a positive impact on job creation. This enhanced integration will have a positive impact also on consumers’ access to goods and services. A better integrated market ensures better cross-border trade and facilitates fight against counterfeited goods.
The Unified Patent Court will have exclusive jurisdiction for the enforcement of unitary patents. The UPC will hear actions related to infringement of unitary patents, counterclaims for revocation, revocation actions, actions for provisional and protective measures and injunctions, actions against decisions of the EPO relating to unitary patents and actions for damages or compensation from provisional protection by published applications. This will provide a more efficient and cost-effective system as patents will not need to be enforced separately in each state. The UPC will create a consistent and uniform patent jurisprudence and guarantee more expeditious proceedings and more predictability in patent litigations. The UPC will have local, regional and central divisions and an arbitration and mediation centre, which will contribute to the expeditious settlement of legal disputes and makes the system more accessible for its users. The Training Centre of the UPC guarantees that the future judges of the system will be equally highly qualified throughout the contracting states, which is the precondition of a uniform and predictable jurisprudence.
The European Union Intellectual Property Office is another example for the regional management of intellectual property rights. The European Union Intellectual Property Office (EUIPO), which was known as OHIM until 23 March 2016, was created as a decentralized agency of the European Union to offer IP rights protection to businesses and innovators across the European Union (EU) and beyond. Since its inception, its core business has been the registration of EU trademarks and registered Community designs, which are valid throughout the European Union (EU). The Office also carries out examination, registration, opposition and cancellation procedures for EU trademarks and examination, registration and invalidity procedures for registered community designs. All decisions adversely affecting a party to proceedings can be appealed to the Boards of Appeal of the Office.
In order to further support IP rights holders, the Office engages in a wide range of cooperation and convergence activities with other IP offices. However, its work at EU level also extends to the harmonization of registration practices and the development of common tools, in cooperation with national and regional IP offices throughout the EU-28, users and other institutional partners. Together, this is the so called European Trade Mark and Design Network, working together to offer users a similar registration experience, be it at national or at EU level.
The EUIPO also hosts the European Observatory on Infringements of Intellectual Property Rights. The Observatory brings public and private stakeholders together in the fight against piracy and counterfeiting. For the EUIPO, this has meant becoming an active participant in the next stage of the intellectual property lifecycle: helping to secure the results of creativity and innovation.
Concerning the management of plant variety rights, the Community Plant Variety Office merits attention. This is a European Union agency, which manages a system of plant variety rights across the 28 Member States. The CPVO provides EU-wide protection for new plant varieties, which is a cost-effective, fast and efficient way for breeders to protect their new plant varieties. The core task of the CPVO is processing of and taking decisions on applications for Community plant variety rights. Furthermore, the CPVO either directly or by its Administrative Council, advises the Community institutions, Council and Commission, and the EU Member States on Plant Variety Rights legislation and related policy areas. The CPVO furthers effective plant variety protection through awareness raising activities designed to foster respect for plant variety rights and encourage the development of enforcement tools. In UPOV, the International Union for the Protection of Varieties of Plants, the CPVO plays a prominent role. It also supports research and development activities aimed at improvement of DUS testing methods.
Another area of regional integration in the EU is the harmonized law on geographical indications. The EU operates three systems for the protection of geographical indications, for wines (aromatised wines), spirit drinks and for agricultural products and foodstuffs. These were created to provide uniform protection for GIs throughout the European Union. The European Commission operates the E-Bacchus database which consists of the Register of designations of origin and geographical indications of wines protected in the EU, the DOOR database for agricultural products and foodstuff and the E-Spirit Database for the spirits. These electronic databases make the EU GI systems transparent and searchable.
Not surprisingly, for the reasons explained so far, we reiterate that the EU supports the regional innovation models all around the world. The African Regional Intellectual Property Organization and the African Intellectual Property Organization are also successful examples of the regional cooperation of their contracting members. The EU supports the work of ARIPO, because it promotes the development of intellectual property laws appropriate to the needs of its members, establishes common services and training schemes, and assist its members in the acquisition and development of technology and the evolving of common views on intellectual property matters. ARIPO developed the Harare Protocol on Patents and Industrial Designs (with 17 contracting members) and the Banjul Protocol on Marks (with 9 contracting members) and these legal instruments introduced harmonization to a certain extent, which helps business to protect and enforce easier its IP rights in the territory of the contracting members. OAPI also plays an important role in the regional integration of its members by protecting industrial property rights, disseminating technical information and providing training on IPRs. OAPI system with its uniform legislation (Bangui Agreement), common office, centralized procedures and single IP titles, ensures more predictability and cost-effectiveness for the IP intensive industries.