[A2k] 9 November 2016 - WTO TRIPS Council - EU's intervention on Intellectual Property and Innovation - Regional Innovation Models

Thiru Balasubramaniam thiru at keionline.org
Fri Nov 11 01:44:17 PST 2016


9 November 2016 - WTO TRIPS Council - EU's intervention on Intellectual
Property and Innovation - Regional Innovation Models

Submitted by thiru on 11. November 2016 - 11:32

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




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

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.

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