Unitary Patent is huge step forward in the creation of a single market for technology, putting Europe on a par with the US and China, EPO chief Antonio Campinos tells Euronews in an interview.
ADVERTISEMENTThe European Unitary Patent system incorporating a the Unified Patent Court have been fully operational since last June 2023, and the new system has exceeded expectations, according to European Patent Office President, António Campinos.
Campinos took up office as the President of the Munich-headquartered European Patent Office (EPO) in 2018. Prior to his appointment, he served as Executive Director of the European Union Intellectual Property Office (EUIPO) in Alicante, Spain from 2010 until June 2018. A Portuguese national, he has previously served as Head of the Portuguese Delegation at the World Intellectual Property Organization (WIPO) General Assemblies, and President of the Administrative Council of the Centre d'Études Internationales de la Propiété Intellectuelle (CEIPI) at the University of Strasbourg. Campinos answered questions from policy editor in chief Jeremy Fleming-Jones.
Can you describe performance of the Unitary Patent since last June?
Within the short period since last June, over 20,000 Unitary Patents have already been registered - roughly a quarter of all European patents granted over the last eight months. Almost 7% out of these Unitary Patents are in technical fields most relevant to standards – information and communication technologies (ICT). It was already anticipated that the unitary patent would be attractive and a great support to SMEs, and this is indeed proving to be the reality. SMEs account for 33% of all registrations of Unitary Patents, which is almost double their share for classic European patents. Moreover, ten of the Unified Patent Court’s divisions of first instance have received close to 250 cases and issued over 100 decisions.
Put simply the new system is a game changer. With one application, innovators have - for the first time in Europe’s history - access to uniform patent protection throughout 17 EU Member States, rising to all EU Member States over time. This a huge step forward in the creation of a single market for technology, on a par with the US and China, and giving Europe incredible business opportunities.
What role does the EPO play in that process?
The EPO has been entrusted by the EU institutions to administer the Unitary Patent – an endorsement of the high-quality products and services we offer. We give innovators a one-stop shop for patent protection in the participating EU Member States. Streamlined procedures and electronic processes have been put in place that make the system easy to use, especially for SMEs, universities, and research institutions. Instead of multiple national patent offices, they now deal with only one office, in one language, in one currency – for registering a Unitary Patent and any kind of licenses, which we also make public. The unitary patent system, defined by reduced complexity and lower costs, truly is an example of “Better Regulation”, and a powerful reminder of just how important it is to create a business-friendly environment in Europe.
But let us be clear, “Better Regulation” implies proper consultation of all stakeholders and thorough impact assessments. This is exactly what happened in the case of the Unitary Patent system. It was constructed carefully over many years, with the involvement of different stakeholders and based on in-depth consultations of businesses across Europe, after careful assessment of the impact of a new patent on Europe’s innovation ecosystem. Keeping this laser focus on “Better Regulation”, and all its principles, is something we simply have to do if we want to build our prosperity on strong foundations – there are no short cuts.
Are you pleased that the SEP regulation appears to have stalled and will not likely now be agreed before the election in June?
It is clear that whatever happens today, this proposal will not be passed during this legislative term. But the apparent rush with which the Commission has attempted to push it through has surprised many observers, including us. Especially given that there are still critical issues that need to be resolved if the regulation is to be fit for purpose.
Nearly 400 amendments have been submitted by MEPs, some of which have removed key elements from the proposal, such as essentiality checks, because of the lack of proper impact assessments. Over 250 questions from EU Member States and the European Parliament’s Committee on International Trade have still not been addressed by the Commission. That’s a real concern as they cover many important aspects of the proposed regulation, especially on the proportionality of the proposed measures in view of the lack of evidence about its impact on technology markets.
On top, Europe’s most renowned IP judges, including the President of the Unified Patent Court, have also raised similar concerns that the proposal does not respect fundamental rights such as access to justice. And just last week, the Commission published a policy brief claiming that the proposal discriminates against European firms and risks Europe’s competitiveness and leadership in standardisation – an alarm bell rung by the very institution responsible for the proposal, from the lawmakers supposed to pass it, and from the judges that would apply and review it.
In light of all these doubts and this uncertainty, the only sensible cause of action is to push the pause button. This would give sufficient time in the next legislature to answer all the outstanding questions, and draw up a proposal that does indeed meet all requirements for “Better Regulation”.
How much of an opportunity do you believe this will now give the EPO to persuade the institutions to change tack?
It is not up to the EPO to persuade EU institutions to change tack, but to support in the development of effective legislation in any way we can, when invited to do so by the Commission. We have over 20 years’ experience pioneering the interface between patents and standards among the world’s patent offices, and in-depth knowledge of how and why major economies compete with Europe for leadership in standardisation. We are also able to share the concerns of users about the proposal’s complexity and costs, which they do not find addressed in the Commission’s impact assessment. All in all, the EPO is well placed to submit facts and evidence that can help to help address the merits and concerns of the proposal, and to help inform effective legislation.
Do you think that the EPO would be a more appropriate repository for the competences related to the SEP licensing arbitration/essentiality checking processes?
At this stage the EPO is not convinced that the proposed measures are proportionate, or indeed necessary - key requirements for “Better Regulation”.
Firstly, the proposal fails to meet the Commission’s own procedural standards of “Better Regulation”, namely legislation that is evidence-based, and built on transparent consultation of all stakeholders and thorough impact assessments. There was also no debate in the European Parliament’s Committee on Legal Affairs, before it was passed by the narrowest of votes.
ADVERTISEMENTSecondly, the proposal’s substance is not aligned with the Commission’s policy to make “EU laws simpler and better, avoiding unnecessary burdens”. For example, when creating the Unitary Patent, EU institutions knew it made more sense to entrust its administration to the EPO, and use the same patent grant process that is widely viewed as providing the highest quality patents, than to set up a new EU agency. The real question we should be addressing is whether there’s an opportunity to implement improvements that make effective use of already existing capabilities, rather than create new costly and complex structures for the taxpayer that are actually redundant.
At the EPO, for example, there are already close to 1000 experienced patent examiners specialised in the latest standards like 5G/6G/7G in the ICT area. Unlike any other patent office, the EPO’s databases contain more than five million standards documents and have links to the databases of standard setting organisations. The EPO’s register provides the public with free of charge access to all relevant worldwide patent data, always up-to-date.
In addition, the Unified Patent Court (UPC) has Europe’s most renowned patent judges. In settling disputes over classic European and Unitary patents, they also decide whether such patents are standard-essential and what are FRAND licensing terms. The UPC’s Patent Mediation and Arbitration Centre will also provide expert mediation and arbitration services for FRAND determination and standard-essentiality checks. And what is more, parties from anywhere in the world can voluntarily bring their disputes over standard-essential patents to the Centre, because its competence goes beyond the 17 EU Member States currently participating in the Unitary Patent system.
Using the existing elements of the European patent system also guarantees proportionality. For example, the current proposal bars innovators and implementers from access to court during a nine-month “conciliation procedure”. But the Unified Patent Court’s short timeframes deliver a decision within just 12 months, ensuring the right of access to justice, as the Court’s President Klaus Grabinski underlined. Alternatively, the Patent Mediation and Arbitration Centre can actually make mandatory “conciliation procedures” redundant, by bringing together arbitration and mediation experts that result in equally swift voluntary settlements. If, in these cases, organisations request essentiality checks to make FRAND determinations, the EPO would be ready to make such assessments with the highest quality and timeliness.
How important is it that EPO takes responsibility for those items?
ADVERTISEMENTWhat matters now is that Europe does not lose leadership in standardisation, a position it has earned over many decades of hard work. The next technologies that become global standards should continue to be “made in Europe”.
To continue to thrive, Europe’s innovators need certainty, and under the current proposal that is simply not the case. As mentioned, the Commission itself has stated the proposal has “backfired” and “undermined” Europe’s competitiveness - before it has even been adopted. That should give everyone pause for thought. Given the importance of the topic to Europe, this is the time for open and transparent debates in the next legislature. Policy makers need enough time to draw up a proposal that is beyond all doubt a better regulation, based on evidence collected from all stakeholders, thorough impact assessments, and a proposal that is capable of realising the full potential of the European patent system – and the EPO is ready to contribute to these debates and support however possible.
