The European Commission proposes new EU patent rules

In a recently published draft, the European Commission (EU Commission) has proposed the introduction of a unitary SPC, new regulations for Standard Essential Patents (SEP) and a new instrument for compulsory licensing of patents in crisis situations in the EU.

To complement the Unitary Patent system the EU Commission has proposed a unitary SPC for medicinal products and plant protection products. A SPC provides up to five years extension of a patent but is currently only available on a national basis, which still will be the case when the Unified Patent Court enters into force on 1 June 2023 and until the proposal has been approved by the European Parliament and the European Council. The proposal is seen as a way to make it more attractive to the pharmaceutical industries to apply for Unitary Patents (or European Patents with unitary effect). The new regulation will be administered by the European Union Intellectual Property Office (EUIPO).

The proposal also includes the establishment of a “Competence Centre” within the EUIPO to promote and secure transparancy of the Standard Essential Patents (SEPs) system. SEPs protect technology that has been declared essential for the implementation of a technical standard adopted by a standard developing organisation. The proposed framework aims to create a balanced system by ensuring that both EU SEP owners and implementers innovate in the EU and that end users benefit from the latest product standards at fair and reasonable prices. The centre would also administer databases and make procedures for essentiality checks of SEPs and the FRAND (Fair, reasonable and non-discriminatory) licensing determination.

Finally the proposed new rules introduce a new EU-wide Compulsory Licensing instrument. Compulsory licensing enables a government to authorise the use of a patented invention without the consent of the patent holder in a crises. The new instrument will complement the existing EU crisis instruments.