2.5 - European IP law

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2.5.1. Community-IP-Rights

 

Pan-European IP-rights. Since the mid-1990’s, we have three supranational, pan-European IP-rights within the European Union. These are Community plant variety rights, EU trade mark rights and  Community design rights as provided for in, respectively, the Community Plant variety Rights Regulation of 1994, the EU Trade mark Regulation of 2016 (originally 2009 and 1994) and the Community Design Regulation of 2001.

Co-existence with national rights. The three Community IP-rights exist in addition to the possibility to acquire national plant variety, trade mark or design rights. This means, for instance, that somebody using a particular brand may be confronted with a claim of trade mark infringement, which claim can be based either on infringement of an EU trade mark right or on infringement of a national trade mark right of one or more Member States.

Unitary European patents. Attempts to come up, in addition to these three Community IP-rights, with a European patent with unitary effect have so far been unsuccessful, but may bear fruit in the coming years.

Community Patent Convention - 1975. Together with creation of the European Patent Convention of 1975, which provides for a single European application with the European Patent Office for national patents, the Community Patent Convention was also signed, but this convention never entered into force because it lacked the required number of ratifications. Another attempt at reviving this project also failed in 1989.

Proposal for a Council Regulation on the Community patent - 2000. In 2000 the European Commission introduced a Proposal for a Council Regulation in the Community Patent, but this initiative ran into political problems also because it introduced a European Patent Court of first instance.

Unitary Patent. The next EU attempt to create a pan-European patent together with a European patent judiciary was held to be in conflict with European Union law by the Court of Justice in an opinion of 8 March 2011  (IPPT20110308) because (i) the Member States cannot confer jurisdiction on actions between individuals to a court created by an international agreement and (ii) the exclusive jurisdiction of the patent court would “alter the essential character of powers which are indispensable to preserve the very nature of EU law”. Thereafter, on 11 January 2013, an “Agreement on a Unified Patent Court” was agreed upon, which agreement will enter into force once thirteen Member States, including the three Member States with the most European Patents – at the moment, the United Kingdom, Germany and France – ratify (article 89). This has not happened and it seems that this may not happen before the Brexit negotiations with the United Kingdom are somehow resolved. If the Agreement enters into force, this will also bring about the coming into effect of the Unitary Patent Regulation. This will create a truly supranational European patent as well as European patent court. In the meantime, it seems that potential legal obstacles have been cleared with two judgements of the European Court of Justice of 5 May 2015. See: Court of Justice EU, 5 May 2015, Spain v Parliament and Council (IPPT20150505) and Court of Justice EU, 5 May 2015, Spain v Council (IPPT20150505).

 

2.5.2. SPC Regulation 

 

Supplementary Protection Certificates. For medicinal products and plant protection products there is a possibility to obtain a supplementary term of patent protection for such a product after the expiration of a basic patent right. The underlying idea is that the period between the filing of the patent application and the actual placement of such a product on the market is so long – because of the required market authorizations – that the effective patent protection term is too short to get a return on the investments made.

EU regulations. Supplementary protection certificates are granted by Member States, but the framework for granting these certificates is provided for in two EU regulations: the SPC Regulation for Medicinal Products of 1992 and the SPC Regulation for Plant Protection Products of 1996. Therefore, supplementary protection certificates also are supranational IP-rights in the European Union.

 

2.5.3. Custom Enforcement 

 

Customs Enforcement Regulation. The possibility to enforce IP-rights by means of national customs authorities suspending the release of imported goods or detaining them is created by an EU Regulation, the Customs Enforcement Regulation of 2003, which goes back to an original regulation of 1994.