Superhero status?: the European Commission and its IP Action Plan

Late last year, the European Commission (EC) published its IP Action Plan. It is a set of wide-ranging and ambitious initiatives to help companies to make the most of their inventions/creations and to encourage Europe’s global green and digital leadership.  As the EC previously focused its attention on trade mark and copyright reform, this initiative seeks to fill gaps in the IP legal landscape.

The IP Action Plan identifies five key aims:

• To ensure that EU innovators have access to fast, effective and affordable tools to protect IP
• To promote effective use and deployment of IP, especially by SMEs
• To ensure that the IP system allows access to critical technologies, where and when necessary, while ensuring an adequate return on investment for innovators
• To closely monitor the application of the Enforcement Directive to ensure effective and balanced judicial redress
• To act as a global standardsetter in IP

Within each of these objectives, the IP Action Plan states the actions which the EC will take.  In this post, we look at the main proposals which will affect UK tech businesses.

Unitary Patent System

As part of the Commission’s drive to reducing the complexity of the existing IP framework, the Action Plan proposes a rapid roll out of the Unitary Patent system in 2021 to create a one-stop-shop for patent protection and enforcement across the EU.  Readers of our blog will know that the Unitary Patent System has had a chequered and controversial past.  As a casualty of Brexit, the UK government announced that it will be withdrawing from the Unified Patent project (see Lens post here).  We are still waiting to see if Germany’s recent re ratification will survive further constitutional challenges (see Lens post here).

SEPs

SEP (standard essential patents) excited the imaginations of lawyers and innovators alike in 2020 with the high profile Supreme Court decision in Unwired Planet v Huawei  (see client briefing here).  The international ramifications of this decision will be significant in 2021 and beyond.  The EC in its IP Action Plan claims that the current system does not offer the tools businesses need for fast, effective and fair SEP licensing arrangements, which often leads to friction and litigation between SEP owners and implementers.  The IP Action Plan states that the EC will facilitate an industry dialogue and that it will consider reforms to further clarify and improve the framework governing the declaration, licensing and enforcement of SEPs.

EU Toolbox

In the fight against IP infringements and counterfeiting, the Action Plan proposes to create an “EU Toolbox”.  The Toolbox will clarify roles and responsibilities and identify ways to work together by setting out principles for joint action, cooperation and data sharing among right holders, intermediaries and law enforcement authorities. It will also promote the use of new technologies such as image recognition, artificial intelligence and blockchain.

And from here?

Given its highly ambitious agenda, the implementation of the Action Plan is likely to be challenging. For instance, finding agreed solutions for SEP licensing and compulsory licenses to other critical IP will be difficult. Indeed, the detail of the actual solutions and the timetables by which they will be enacted are often unclear.  So whilst the IP Action Plan reads like the EC will become a global IP superhero, it remains to be seen whether this is actually achievable in practice.   

Many thanks to Nick Gill for his research assistance in preparing this post.