EU Activities

The European Union is currently composed of 15 member states and is preparing for the accession of 13 more eastern and southern European countries. The main way in which the EU affects IP law is through reform initiated by the European Commission Directorate-General (see its intellectual property and industrial property Internal Market pages). Enforcement and administration of EU patent and trade mark systems occurs through the Office for Harmonisation in the Internal Market (European rade Mark Office), and the European Patent Office. By area of law: Copyright and Related Rights 1. EU Directive on Copyright in the Information Society 2. Resale Right for Authors of Original Works of Art 3. Management of Rights Patents 1. Community Patents 2. Computer Programs 3. Biotechnological Inventions By issue: Harmonisation Community Trade Marks Community Designs Community Utility Models Enforcement of Intellectual Property Rights Domain Names Technology Transfer and Competition Research & Development New Publications   Back to top Copyright and Related Rights European Commission adopts a Communication proposing a single market for online music, films and games in Europe On 3 January 2008, the EC adopted a Communication on “Creative Content Online in Europe’s Single Market”. The Communication, formulated in response to a public consultation conducted in 2006, encourages the content industry, telecoms companies and internet service providers to work closely together to make more content available online, while at the same time ensuring a ‘robust’ protection of IP rights. The Commission identifies four main challenges which merit further action at the EU-level: availability of creative content; multi-territory licensing for creative content; interoperability and transparency of Digital Rights Management systems; and measures to combat piracy. In conjunction with the Communication, the Commission also launched a public consultation in order to prepare – by mid 2008 – an EU recommendation on Creative Content Online for adoption by the European Parliament and the Council. Comments are due by 29 February 2008. For more information, click here Interim position on open access published by the scientific council of the European Research Council On 17 December 2007 the European Research Council (ERC) published its “Scientific Council Guidelines for Open Access”. The interim position adopted in the Guidelines requires that all peer-reviewed publications from ERC-funded research projects and all primary data be deposited on publication into an appropriate research repository within 6 months of publication. To access the Guidelines, click here Europe’s Digital Library experts focus on copyright On 18 April 2007, the i2010 Digital Libraries High Level Expert Group – Copyright Subgroup, which includes members from the British Library and the Federation of European Publishers, presented an advisory report on copyright issues to the European Commission. The report is on issues of digital preservation and discusses orphan and out-of-print works. The group also discussed how to ensure more open access to scientific research and how to improve public-private cooperation. The work of the group is part of the European Commission’s efforts to make Europe’s cultural and scientific heritage available online. For more information, click here Two new EC directives on copyright enter into force On 25th January 2007, two new European Commission directives on copyright entered into force. They are Directive 2006/115/EC on rental rights and lending rights and on certain rights related to copyright in the field of intellectual property, and Directive 2006/116/EC on the term of protection of copyright and certain related rights. Directive 2006/115/EC repeals and replaces Directive 92/100/EEC. The provisions of Directive 2006/115/EC include: exclusive rights to authorise or prohibit the rental and lending of works subject to copyright and other objects subject to neighbouring rights; a harmonisation of certain neighbouring rights including the right of fixation, reproduction, broadcasting and communication to the public and distribution; the beneficiaries of rights related to copyright are performers, phonogram producers, film producers and broadcasters; Member States can derogate from the exclusive public lending right, provided that at least authors obtain remuneration for such lending; and the author of a cinematography work is the principal director. To access Directive 2006/115/EC, click here To access archived information on the repealed Directive 92/100/EEC and on the public lending right, click here Directive 2006/116/EC repeals and replaces Directive 93/98/EEC. The provisions of Directive 2006/116/EC include: a total harmonisation of the period of protection for each type of work and each related right in the Member States – e.g. 70 years after the death of the author for works and 50 years after the event setting the time running for neighbouring rights; and the period of protection for previously unpublished works, critical and scientific publications, and photographs. To access Directive 2006/116/EC, click here EC to assess the development of Europe’s online music sector The European Commission recently announced it will assess the development of Europe’s online music sector. The assessment is in light of the Commission recommendation of 18 October 2005 on collective cross-border management of copyright and related rights for legitimate online music services. Interested stakeholders are invited to submit their views and comments on their initial experience with the Recommendation and how the online music sector has developed generally since its adoption. Comments were due by 1 July 2007. For more information, click here Related: Parliament releases report on Commission’s Recommendation for online music services On the 5 March 2007, the European Parliament released a report on the European Commission’s Recommendation of 18 October 2005 on collective cross-border management of copyright and related rights for legitimate online music services (2005/737/EC). Among the main conclusions, the Parliament invites the Commission to clarify that the Recommendation applies exclusively to online sales of music recordings. The report states that the interests of IPR holders and of cultural diversity in Europe will be best served by ‘the introduction of a fair and transparent competitive system that avoids downward pressure on authors’ revenues’. According to the report, the proposed directive should ‘guarantee right-holders a high degree of protection and equal treatment’ but also ‘promote creativity and cultural diversity’. To access the report, click here European Commission renders commitments between music publishers and collecting societies legally binding On 4 October 2006, the European Commission announced that commitments given by the five major music publishers (BMG, EMI, Sony, Universal and Warner) and thirteen European collecting societies, the signatories of the Cannes Extension Agreement, are now legally binding under EC Treaty competition rules. The commitments ensure that record producers can continue to receive rebates from collecting societies on royalties paid in the context of Central Licensing Agreements. Under a Central Licensing Agreement, a record company can obtain a copyright licence for the combined repertoires of all the collecting societies and covering the whole of the European Economic Area (EEA) or part thereof, from any collecting society within the EEA. The commitments also ensure that potential entry by collecting societies in the music publishing or record production markets is not impeded. According to the European Commission, the Cannes Extension Agreement “settles a number of issues regarding the relations between the two groups of companies.” For more information, click here European Charter for Film Online endorsed by major industry players At the Cannes Film Festival on 23 May 2006, a variety of broadcasters, telecom operators and film studios from the European Union and the United States, including the BBC, France Telecom and Time Warner, endorsed a charter to substantially broaden access to film online. Launched by the EU Commissioner for Information Society and Media last year at Cannes, the “European Charter for the Development and the Take-Up of Film Online” is open for endorsement by all interested parties and is expected to attract more signatories in the coming months. The Charter promotes examples of ‘commendable practices’ in three main areas. These include improving the availability of Film Online Services on a mutually profitable basis, education regarding copyright in order to secure the sustainable availability of content, and co-operation to combat piracy. For the Commission, the Charter is also seen as the first step towards developing a broader Content Online Policy for the European Union. The Commission will present a Communication of this subject in autumn 2006. For more information, click here Making Europe's online content market more competitive: Commission opens public consultation A public consultation on ways to stimulate the growth of an EU single market for online digital content, such as films, music and games was launched by the European Commission on 28 July 2006. The content online consultation also aims to identify stakeholder views on self-regulatory initiatives such as the Film Online Charter, to assess whether the initiative could be used as a model for similar initiatives in other online content sectors, and to evaluate whether regulatory measures at EU level are required to ensure the completion of an EU market for online content without borders. Input to this consultation will help shape a Commission Communication on Content Online, due to be adopted at the end of 2006. The deadline for replies to the consultation questionnaire was 13 October 2006. For more information, click here European Commission launches a consultation on copyright levy reform In June 2006, the European Commission launched a public consultation on copyright levy systems in the form of a questionnaire, entitled “Copyright levies in a converging world”. An initiative on copyright levies is in the Commission Work Program for 2006. The consultation arises in the context of the ongoing review of Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the harmonisation of copyright and related rights in the Internal Market. Member states have already been consulted regarding the scope of the private copying exception and existing systems of remuneration. The most prevalent system of remuneration is that of copyright levies. According to the Commission, the questionnaire will act as an additional follow-up consultation, intended to “further improve the quality of the policy outcome and at the same time enhancing the involvement of interested parties and the public at large.” The consultation process ran from 6 June to 14 July 2006. For more information, click here Copyright issues remain regarding European Digital Library plan In March 2006, the European Commissions’ European Digital Library proposal received strong support following an extensive online consultation with a variety of stakeholders. The majority of libraries, archives and museums, publishers and right holders, and universities/academics who replied generally welcomed the initiative. However, opinions are divided on copyright issues, in particular between cultural institutions and right holders. Under the proposal, at least six million books, documents and other cultural works will be made available to anyone with a Web connection over the next five years. Before the end of the year, a Commission Communication on “Content Online” will address the issue of the appropriate framework for intellectual property rights protection in the context of digital libraries. By the end of 2006, the Commission expects the proposal should encompass full collaboration among the national libraries in the EU. For more information, click here 1. EU Directive on copyright in the information society The European Union has been endeavouring to reform its copyright system to make it more compatible with digital communication technologies. On 22 May 2001 the European Parliament and Council issued a Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society. This Directive was designed to give effect to two treaties developed in December 1996 by the World Intellectual Property Organisation (WIPO): the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. Member States agreed to implement the directive before 22 December 2002. The Directive applies to three main areas: reproduction rights: contained in article 2 and specifically extends to direct, indirect, temporary or permanent reproductions in whole or in part; the communication right: article 3 grants to authors the exclusive right to communicate their works to the public by wire or wireless means, including the making available of their works for subsequent on-demand public access. It also grants the latter 'making available' right to performers and producers of phonograms and films; and distribution rights: contained in article 4, this right is exhausted by the first sale or other transfer of ownership in the Community by the author. Although the definition of the author of creative works is in most cases not harmonised by EU law, a report issued by the European Commission in December 2002 concluded that all Member States now recognise the principal director of a film or audiovisual work as an author of the work and accord him or her the associated IP rights, in line with the 1992 Directive. However, differences in detail still exist with respect to the question of who, among the group of persons involved in the making of the film, are to be considered as co-authors besides the principal director. The Report states that the harmonisation has not made it more difficult to distribute and market audiovisual works, despite fears expressed by some Member States when the Directive was adopted. The Report notes that, in practice, the potential difficulties in exploitation of works that arise due to the fact that there may be more than one author, are overcome by contractual arrangements. Along with contractual arrangements, Member States provide for statutory rules on transfer of rights in these works and underlying works to the producer with the intention of assuring efficient exploitation of cinematographic and audiovisual works. The Reports concludes that "the overall results show that the partial harmonisation of the notion of authorship of such works has had a noticeable effect on contractual arrangements involving contributors and producers of cinematograph and audiovisual works. These arrangements would have to be subject to continued scrutiny in order to ensure a proper contractual balance and safeguard the functioning of the Internal Market." Current Status of the Directive Greece and Denmark met the December 2002 implementation deadline. Italy and Austria implemented the Directive in April and June 2003 respectively. The Commission has now decided to send reasoned opinions to the other eleven Member States (Belgium, Germany, Spain, France, Ireland, Luxembourg, the Netherlands, Portugal, Finland, Sweden and the UK) which are still in the course of implementation. Most of them have stated that they will implement during 2003 and Germany will do so during July, but the Commission, fulfilling its role as guardian of the Treaties and in order to ensure that European citizens and businesses get the benefit of the Directive as soon as possible, will pursue infringement procedures until all Member States have written the Directive into national law. In December 2003, the European Commission decided to refer eight Member States (Belgium, Spain, France, Luxembourg, the Netherlands, Portugal, Finland and Sweden) to the Court of Justice for non-communication of the national implementing measures. It has also decided to refer the UK to the Court because the UK national law does not apply to the territory of Gibraltar. The Commission has decided not to refer Ireland to the Court because the Irish copyright law was adopted in 2000 based on an earlier draft of the Directive and therefore it was notified to the Commission on the basis that it was in substantial compliance and only minor adjustments are necessary. Report on Standards and Specifications for Digital Technology Following the approval of the Directive, the European Commission requested that the European Standards Committee (CEN) and the Information Society Stantardization System (ISSS) examine the state of the art in standardization in the field of Digital Rights Management (DRM). The final report was approved by the CEN/ISSS DRM Group in October 2003 and is now available on the web. The aim of the report is to identify the current status of DRM usage and possible means to ensure effective implementation of DRM in the marketplace. It is derived from individual and voluntary contributions from interested parties. For a copy of the Final Report, click here.   Back to top 2. Resale right for authors of original works of art The European Union has attempted to strengthen the economic position of authors of original works of art, and remove some of the imbalance between authors and those who subsequently deal with their works, by providing for an exclusive resale right. This right obtained final approval from the Parliament and the Council on 27 September 2001 in the Directive on the Resale Right for the Benefit of the Author of an Original Work of Art. The right entitles an author to receive a percentage of the price obtained for any resale of a work. The right cannot be waived. The only exception is where the seller has acquired the work directly from the author in the previous 3 years, and its sale price is less than E 10000. The progressive royalty scale will be: 4% for the portion of the sale price between the minimum (to be set by member states above E 3000) and E 50000 3% for that portion between E 50000 and E 200000 1% for that portion between E 200000 and E 350000 0.5% for that portion between E 350000 and E 500000 0.25% for that portion above E 500000 The royalty will be payable by the seller to the author (or the author's estate), and will last until 70 years after the author's death. Member states must enact laws that comply with this Directive by 1 January 2006.   Back to top 3. Management of Rights The term "management of rights" refers to the means by which copyright and related rights are marketed. Rights management can be carried out individually by the rightholder, or collectively by a collecting society acting as a trustee. Community legislation on the collective management of rights, and particularly on the governance of collecting societies, would be highly desirable. This is one of the main conclusions arrived at in a Communication published by the European Commission following an in-depth analysis of the issues surrounding the management of copyright and related rights. Moreover, the Commission is immediately launching a further consultation exercise on what such legislation might consist of. In the Communication, the Commission notes that the Internal Market has largely become the framework for managing and using copyright and related rights: the digital environment, by definition, makes it possible to exploit rights across borders, but, at the same time, licensing for analogue exploitation is also increasingly taking on a cross-border dimension. Moreover, established Community legislation regarding intellectual property rights proper is now quite robust. It is based on seven harmonisation directives. This being so, effective rights management is crucial to ensuring that the Internal Market functions properly in this field. Furthermore, it is important to be sure that the rights management system can adapt to new developments, such as the increasing demand for Community-wide licences for the use of certain rights. It must also ensure that the necessary protection and remuneration of authors and performers are balanced against the demands of commercial users. On the basis of these needs and of the results of the consultation process which commenced in 1995, the Commission has come to four main conclusions: 1. An Internal Market for collective rights management will be more firmly established if a legislative framework on the governance of collecting societies is implemented at community level. Such a framework would address the issues surrounding the establishment and status of collecting societies, the relationship they have with rightholders and commercial users, and lastly, their external supervision. This would make it possible to ensure that collecting societies are transparent, and that established Community law in the field of intellectual property is properly applied. It would foster the emergence of Community-wide licensing for the exploitation of rights. 2. There is no need, for the moment, to take any action at Community level with regard to individual rights management. 3. The advent of Digital Rights Management (DRM) systems has generated high expectations, but a necessary pre-condition for their development is their interoperability and acceptance by all stakeholders, including consumers. 4. With regard to the increasing demand for Community-wide licensing for the exploitation of certain rights, the Commission's Communication describes several options for improving the situation. In principle, the response to this demand should be market-led, but it could be supported by common rules on collective rights management and on good governance of collecting societies. The Commission is launching a consultation exercise beginning immediately to take over where the one which ended in 2002 left off and focus especially on the components of possible legislation on collective rights management. This will make it possible to discuss the impact of such an initiative. For more information, click here. Details of current infringement proceedings against all Member States are available on the Europa website.   Back to top Patents Revised version of the European Patent Convention (EPC 2000) enters into force The European Patent Convention of 1973 was comprehensively revised at a Diplomatic Conference in November 2000. Under Article 8 of the Revision Act, the new version of the Convention – EPC 2000 – entered into force on 13 December 2007, two years after the fifteenth contracting state ( Greece) deposited its instrument of ratification. The EPC 2000, which applies to all European patent applications filed after the date of entry into force, leaves substantive patent law largely unchanged. The main amendments are to Article 54(3), concerning the novelty-destroying effect of prior European patent applications, and Article 54(5), expressly providing for use-limited product protection for a second or further medical use of a known substance. For more information, click here New brochure on patent issues for researchers published by the European Patent Office and the European Commission The European Patent Office and European Commission have published a brochure titled “Why researchers should care about patents”. It aims to summarise the main considerations when conducting patent research, particularly before the commencement of an R&D project. The brochure, released in January 2008, provides information on how to search patent literature, when to consider patenting in an R&D project, and the importance of respecting third parties’ rights when patenting. To access the brochure, click here European Commission launches sector inquiry into pharmaceuticals The European Commission has launched an inquiry into competition in the pharmaceuticals sector under Article 17 of Regulation 1/2003, and is conducting inspections at the premises of a number of pharmaceutical companies. The inquiry is limited to medicines for human consumption and will examine whether agreements between pharmaceutical companies, such as settlements in patent disputes, may infringe the EC Treaty’s prohibition on restrictive practices under Article 81. It will also look into whether companies may have created artificial barriers to entry, whether through the misuse of patent rights, vexatious litigation or other means, and whether such practices may infringe the EC Treaty’s ban on abuses of dominant market positions under Article 82. An interim report is planned for Autumn 2008 and final results are expected in Spring 2009. For more information, click here European Competitiveness Council discusses European patent litigation system The Competitiveness (Internal Market, Industry and Research) Council of the European Union met in Brussels from 22 to 23 November 2007. The Council agreed on the need to continue work towards finding solutions for a Europe-wide patent litigation system and a Community Patent. The exchange of views took place on the basis of a progress report elaborated by the Presidency following the Commission’s communication ‘Enhancing the patent system in Europe’ of 3 April 2007. The report indicates general features that may form a basis for future work on the European patent litigation system, including: the patent jurisdiction should be an exclusive jurisdiction dealing with validity, infringement and inter-related proceedings concerning European patent and future Community patents; it should be a Community jurisdiction specialised in patent litigation; it should be an integrated system effective in all member states; and all divisions would form an integral part of a unified Community jurisdiction with uniform procedures. For more information on the Competitiveness Council meeting, click here [for conclusions on the European patent litigation system, see page 25] European Parliament adopts a resolution on the TRIPS Agreement and access to medicines On 12 July 2007, the European Parliament adopted a resolution which stresses the importance of the Doha Declaration on the TRIPS Agreement and Public Health. The Doha Declaration allows developing countries to manufacture genetic substitutes for patented medicines and was adopted in November 2001 by the Ministerial Conference of the World Trade Organization. The European Parliament asks the European Council to ‘meet its commitments to the Doha Declaration and to restrict the Commission’s mandate so as to prevent it from negotiating pharmaceutical-related TRIPS-plus provisions affecting public health and access to medicines’. In addition, the Council is called upon to encourage research, technology transfer, capacity strengthening and registration ‘in order to facilitate and increase the production of pharmaceutical products by the developing countries themselves’. To access the resolution, click here Update: European Parliament votes in favour of a Council Decision to ratify the Protocol amending TRIPS On 24 October 2007, the European Parliament adopted a resolution in favour of a Council Decision to ratify, on behalf of the European Community, the Protocol amending the World Trade Organisation (WTO) agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). According to the Protocol, developing countries ‘with insufficient or no manufacturing capacity in the pharmaceutical sector’ are given the opportunity to import cheap generic versions of patented pharmaceuticals. The TRIPS Council, which consists of all WTO members, recently agreed to extend the deadline for the Protocol to enter into force from 1 December 2007 to 31 December 2009. For more information on the European Parliament resolution, click here For more information regarding the TRIPS Council’s decision to extend the deadline for ratification, click here Report on patents and R&D expenditures In November 2006, Eurostat (the Statistical Office of the European Communities) published a report on patents and R&D expenditures. The report looks closely at the role of patent activity at the European Patent Office (EPO) and the US Patent and Trade Mark Office (USPTO) as an output of R&D expenditure. The main findings include: businesses applied for most EPO patents (82.4%), followed by the government sector (13.8%), and the higher education sector (1.9%); a high level of gross domestic expenditure on R&D leads in most countries to a high number of patent applications to the EPO or patents granted by the USPTO; and the ratio of business enterprise R&D to EPO patent applications in the business sector indicates that EU patent applications require less research funds than American or Japanese applications. To access the report, click here Follow-up study on patent litigation insurance The European Commission has released a follow-up study on patent litigation insurance (PLI) for public comment. Following the first study commissioned in 2002, this study aims to evaluate the feasibility of a small number of alternative schemes for insuring European patents and, when they exist, Community Patents. Key findings include: patentees would like to insure their patents – if the premium and conditions are reasonable; the PLI market is currently small and weak, and the risks of entry for insurers seem to exceed the potential for rewards. This is why so few insurers are interested; the only basis on which insurers wish to be involved would be on a scale which only a mandatory scheme could provide; and it may be possible to revert back to a voluntary scheme later once a scheme is well established. The Commission sought views of all interested parties on this follow-up study and invited them to submit their contributions by 31 December 2006. For more information and to access the study, click here Public hearing on future patent policy in Europe On 12 July 2006 in Brussels, the European Commission held a public hearing on future patent policy in Europe. The hearing was based on the preliminary results of 2,515 responses received regarding a consultation launched in January 2006 on the structure of the patent system in Europe. The results from the hearing include: there was general consensus that the current patent system should be improved and that a clear IP policy for Europe should be implemented; all participants agreed on the importance of a substantive patent law harmonisation and that it is in part achieved at EU level by the European Patent Convention. The importance of a future mutual recognition among trilateral offices (EPO, USPTO and JPO) was highlighted; most participants supported the concept of a Community patent, however, “not at any price”; most participants favoured changes to the current patent litigation regime to prevent conflicting interpretations in multi-jurisdictional cases. The majority supported the draft European Patent Litigation Agreement; and many participants stressed that the daily life of small to medium enterprises (SMEs) should be better taken into account by the patent system, in relation to cost and their ability to understand and use the patent system. To access the report regarding the public hearing, click here European Commission calls on member states to support patent use On 22 May 2006, the European Commission called on greater efforts by national governments and EU institutions to help businesses obtain the benefits of the current patent systems in Europe. The latest Community Innovation Survey has revealed that European businesses, mainly small and medium sized enterprises (SMEs), are still reluctant to use patents and prefer to rely on secrecy. Issues discouraging SMEs from using the patent system include differences in the cost of patenting and lengthy litigation procedures. Director of Innovation Policy at the European Commission’s Enterprise DG, David White, urged representatives from participating national patent information centres to understand companies’ concerns and share examples of how patents are used. Mr White also said that the Commission would look to reinforce its cooperation with National Patent Offices, and encourage the development of a network of National Patent Offices, in order to create a ‘one-stop-shop’ for European enterprises in their own language. For more information, click here  European Parliament votes against mutual recognition of patents by the EU Member States On 15 March 2006, a majority of the European Parliament voted against calling on the European Commission for a legislative proposal to stipulate the mutual recognition of national patents by the 25 member states of the EU. The proposal was included as part of a resolution on the EU's Lisbon Agenda for innovation and economic policy. The Foundation for a Free Information Infrastructure and NoSoftwarePatents.com campaign lobbied MEPs to vote against the related passage of a proposed resolution, stressing that the mutual recognition of national patents "would result in a flood of patent suits all over Europe, lower quality standards, and ever more software patents". For further information, click here 1. Community Patents The European Union is proposing to implement a unitary Community-wide system of patent protection, established under article 235 of the EC Treaty. This will give inventors the option of obtaining one patent which is legally valid throughout the entire European Community (as opposed to one application being converted into several national patents). A Community Patent will provide greater certainty for inventors, and decrease the potential for conflict when patents are filed in some jurisdictions but not others. It will make patent protection cheaper and more efficient. The Community Patent system is intended to operate alongside the existing 1973 Convention on the Grant of European Patents (the Munich Convention) system, which established the EPO. Inventors will be able to choose which kind of protection best suits their needs. Applications for a Community Patent will be made to the EPO, with the inventor specifying the European Community as the relevant territory. A Community Intellectual Property Court will be established to resolve any disputes that may arise. The development of the proposal for a Community Patent can be traced through the following documents: 1973 Luxembourg Convention, in which countries agreed in principle on the creation of Community Patent, but complexities with its implementation meant the Convention never entered into force Green Paper entitled Promoting Innovation Through Patents, adopted by the European Commission in June 1997 Proposal for a Council Regulation on the Community Patent made by the European Commission in August 2000 Opinion of the Economic and Social Committee on the Commission's Proposal, delivered March 2001 Commission Staff Working Paper on how to implement the Commission's Proposal as a revision of the European Patent Convention, including drafting suggestions and issues for discussion On 7 October 2002, the European Commission released its first annual report entitled 'Development and Implications of Patent Law in the Field of Biotechnology and Genetic Engineering', pursuant to Article 16(c) of the Directive 98/44/EC on the legal protection of biotechnological inventions. The Report's main conclusion was that all member states must fully and swiftly implement the 1998 Directive or Europe will fall behind its competitors in this crucial sector. The report all addresses key provisions of the Directive, such as the potential patenting of plants and animals and the patenting of elements isolated from the human body or otherwise produced, including stem cells. The report is in line with the Commission's Communication of 23 January 2002 (see IP/02/122) entitled 'Life Sciences and Biotechnology - A Strategy for Europe' which aims to promote biotechnology within a flexible regulatory framework and ensure consistency across policies, sectors and biotech stakeholders. The Commission identified two areas of particular interest for more detailed analysis: The scope to be given to patents related to sequences or partial-sequences of genes isolated from the human body; and The potential patenting of human stem cells and cell lines obtained from them. These two topics will be studied by a group of independent experts (specialising in the fields of economics, law and natural sciences) beginning November 2002. The conclusions will be presented to the Commission for the preparation of the upcoming 2003 progress report. At the 3 March 2003 meeting of the Competitiveness Council of Ministers, the Council reached agreement on a "common political approach" concerning the proposed Community Patent. This common approach includes the main outlines of the system of jurisdiction whereby a centralised Community Court would rule on disputes, the language regimes, costs, the role of national patent offices and the distribution of fees. The Community Patent, on the basis of the compromise, would halve the costs of patent protection. At the moment, patent protection in just eight European countries costs some 50,000 euros - around five times as much in the US or Japan. The Community Patent would halve these costs to some 25,000 euros for 25 member states rather than just eight - still more than the US or Japan (see document). The Council also agreed, in accordance with the Commission's original proposal, that there should be a single, centralised Community Court to rule on disputes arising from Community Patents. Some of the key features of the agreed proposal are: Jurisdictional system: the jurisdictional system of the Community Patent will be based on the principals of a unitary Court for the Community Patent, securing uniformity of the jurisprudence, high quality of working, proximity to the users and potential users and low operating costs. The Court of Justice shall have exclusive jurisdiction in actions and claims of invalidity or infringement proceedings, of actions of a declaration of non-infringement, of proceedings relating to the use of the patent or to the right based on prior use of the patent, or requests for limitation, counterclaims for invalidity or applications for declaration of lapse, including requests for provisional measures. Technical experts will assist judges throughout the handling of a case. A Community Patent Court shall be established at the latest by 2010. Costs: the renewal fee must not exceed the level of corresponding renewal fees for an average European Patent and will be progressive throughout the life of the Community Patent. Procedural fees for processing an application will be the same regardless of where the application is filed and where the novelty search is carried out. Role of National Patent Offices: the EPO will play a central role in the administration of the Community Patent and will alone be responsible for examination of applications and the grant of Community patents. Some of the duties of national patent offices (NPOs) will include advising potential applicants for Community Patents, receiving applications and forwarding them to the EPO, disseminating patent information and advising SMEs. NPOs will be compensated for these activities. Review Clause: five years after the grant of the first Community Patent, the Commission will present a report to the council on the functioning of all aspects of the Community Patent and, where necessary, make appropriate proposals. At the Competitiveness Council of Ministers, which took place in Brussels on March 12, 2004, the Council failed to reach an agreement on the proposed Regulation creating a Community patent. The main sticking point was how infringements of patents which might arise as a result of mistranslations should be treated. In the absence of agreement, the Presidency concluded that it would reflect on how to proceed further. Speaking after the Council, Commissioner Bolkestein said "I am disappointed that more than two years after the deadline set by the Lisbon European Council, and a whole year after the Council agreed the main principles, today's Council has still proved incapable of agreeing this crucially important initiative. European industry desperately needs access to pan-European patent protection at reasonable cost with minimum red-tape and maximum legal certainty. "The Lisbon Summit itself identified the Community Patent as a vital measure for boosting Europe's competitiveness by encouraging innovation. The failure to agree on the Community Patent I am afraid undermines the credibility of the whole enterprise to make Europe the most competitive economy in the world by 2010. "It is a mystery to me how Ministers at the so-called "Competitiveness Council" can keep a straight face when they adopt conclusions for the Spring European Council on making Europe more competitive and yet in the next breath backtrack on the political agreement already reached on the main principles of the Community Patent in March of last year. I must stress that this is despite the very courageous and determined efforts by the Tánaiste Mary Harney to broker a compromise. "I can only hope that one day the vested, protectionist interests that stand in the way of agreement on this vital measure will be sidelined by the over-riding importance and interests of European manufacturing industry and Europe's competitiveness. That day has not yet come." In February 2004, the European Commission presented proposals for two Council Decisions establishing a Community Patent jurisdiction, under the aegis of the European Court of Justice, to allow the resolution of disputes within the future Community Patent system, in particular those on infringements and on the validity of Community Patents. Under the proposals, the jurisdiction of the Court of Justice would be exercised by a new Community Patent Court. The new system would mean that judgements over Community Patent rights would be effective throughout the EU, avoiding the expense, inconvenience and confusion that can occur when judgements in several different national courts are required. The first proposal presented by the Commission would confer on the Court of Justice formal jurisdiction concerning certain disputes over Community Patents, in particular those concerning alleged infringements of patents and challenges to the validity of patents. The second proposal would establish the Community Patent Court, whose seven judges would be appointed by the Council of Ministers, to exercise the Court of Justice's jurisdiction on its behalf. It also sets up a specialised chamber within the Court of First Instance to hear appeals against the Community Patent Court's judgements. In exceptional cases, a decision of the Court of First Instance could be subject to review by the Court of Justice. Disputes are currently decided by the courts of the respective Member States, which means that bringing an action for infringement of a patent or contesting the validity of a patent may require bringing actions in a number of Member States. The Community Patent Court would operate according to a single set of procedural rules, with a uniform case law and with costs affordable for users and in particular for SMEs. It would also provide legal certainty for the protection of inventions throughout the Union. For more information about the proposals, including the text of the two proposals, click here. Back to top 2. Computer Programs Meeting in Brussels on May 18, 2004, the European Commission has welcomed the Competitiveness Council’s political agreement on a ‘common position’ on the proposed Directive on computer-implemented inventions. The proposed Directive aims to boost innovation by ensuring that those who invest in developing genuinely new products that depend on computer implemented technology can, like those who develop other products, get a fair reward. It would achieve this without sealing off the software market to new initiatives and new inventions. The Commission supports the text adopted by Council, which it believes restores the overall balance between the interests of the rights holders and other parties (competitors and consumers) struck by the original Commission proposal presented in February 2002. However, there are still differences between the positions of the Council and European Parliament and, under the procedure known as ‘co-decision’, both institutions must agree before the measure can become EU law. Once the Council has formally adopted the ‘common position’ without discussion at a forthcoming meeting, the text will be transmitted to the Parliament to begin its second reading after it has reconvened in September following the June 2004 elections. The proposed Directive seeks to harmonise the way in which national patent laws deal with computer-implemented inventions. Such inventions can already be patented by applying to either the European Patent Office (EPO) or the national patent offices of the Member States. However enforcement of patents is dealt with by national courts and, as the law may differ between Member States, the level of protection may, in practice, vary. This can represent a significant barrier to trade in patented products within the Internal Market. The balance of the Commission’s original proposal is maintained in the text adopted by the Council. This is to provide legal clarity while avoiding any drift towards patents for business methods or computer programs which do not provide any technical contribution to the state of the art. The text adopted by Council includes twenty one amendments proposed by the European Parliament at its first reading but there remain some important differences between the two institutions’ positions. These differences mainly relate to exceptions from patentability for computer-implemented inventions. The Parliament wanted wide exclusions covering the use of patented technology for interoperability and data handling. However, the Commission and Council felt that these went beyond what was required to set the right balance between rewarding inventors for their efforts and allowing competitors to build on these inventions, and could ultimately harm EU competitiveness. The European Parliament will now have to consider the ‘common position’ text in its second reading. The development of the proposed Directive can be traced through the following documents: The 1997 Green Paper on the Community Patent Study on The Economic Impact of the Patentability of Computer Programs A discussion document published on the Europa website in October 2000 Analysis of comments received on the discussion document Update: European Commission confirms that computer programs will not be patentable under proposed patent regulation On 18 May 2006, the European Commission stated that computer programs will be excluded from patentability in the upcoming Community Patent Regulation. The Commission also confirmed that the European Patent Office's case law is not binding for member states, nor (under the proposed Community Patent Regulation) for the European Court of Justice. The announcement was made in response to a question posed by a Polish Minister of European Parliament, Adam Gierek. The Commission also stated that the Directorate-General for the Internal Market and Services has launched a broad consultation on the structure of the European patent system and the Community Patent. According to the Commission, preliminary findings will be discussed with stakeholders at a hearing in Brussels that will ‘most probably’ take place in June 2006. The European Parliament will then be informed of the results of this consultation. To access the statement of the European Commission, click here Back to top   3. Biotechnological Inventions On 6 July 1998 the European Parliament and Council adopted the Directive on the legal protection of biotechnological inventions, which was designed to harmonised national laws and resolve ethical issues in this controversial subject area. The basic idea in the Directive is that inventions based on or comprising of biological material can be patented provided they satisfy the normal criteria for patentability, namely that they are novel, involve an inventive step and are capable of industrial application. The Directive explicitly states that a mere discovery of biological information is not patentable. This would mean that, for example, the discovery of a new gene sequence would not be patentable, but the isolation of that gene sequence from its natural state for industrial application could be patented. However, the Directive also states that certain kinds of inventions are not patentable based on public order or morality, including processes for cloning human beings, and the use of human embryos for industrial or commercial purposes. Member states had two years following publication, or until 30 July 2000, to implement the Directive. However, most European countries postponed implementation because the Netherlands, supported by Italy and Norway, challenged the Directive. On 9 October 2001 however, the European Court of Justice rejected the Netherlands' claim. To date, only seven Member States (Denmark, Finland, UK, Ireland, Spain, Greece and Portugal) have implemented the Directive into national law, which has created barriers to trade and hampered the operation of the internal market. This is despite the Commission's efforts to co-operate with Member States to speed up progress, including through three high-level meetings, the most recent in January 2003. These meetings reviewed the state of play and gave Member States the opportunity to explain any political and technical obstacles. The Commission has continued to follow any developments in the field of biotechnological inventions very closely. On 7 October 2002, it published the first report provided for by the Directive entitled "Development and Implications of Patent Law in the Field of Biotechnology and Genetic Engineering" (IP/02/1448). To pursue its review, the Commission met with Member states in order to try to speed up progress in the implementation of the Directive and Commission has appointed a group of experts to assist in drawing up future reports. The group's mandate is to analyse important issues surrounding biotechnological inventions. It will not touch upon ethical issues, which are the mandate of the the European Group on Ethics, but instead will focus more on legal and technical aspects and on the mutual impact of the legal framework and the research and innovation area. The group will focus on two particularly sensitive fields identified by the first report: the scope to be given to patents related to sequences or partial sequences of genes isolated from the human body; and the potential patenting of human stem cells and cell lines obtained from them. These topics were discussed by the group in March and May 2003 respectively. The group's conclusions will be presented to the Commission and taken into account for the preparation of the next annual report on the development and implications of patent law in the field of biotechnology and genetic engineering. In July, the European Commission decided to refer Germany, Austria, Belgium, France, Italy, Luxembourg, the Netherlands and Sweden to the European Court of Justice, as they have still not implemented Directive 98/44/EC on the legal protection of biotechnological inventions. The Directive should have been written into national law by 30 July 2000. It aims to clarify certain principles of patent law applied to biotechnological inventions whilst ensuring that strict ethical rules are respected. Such clarifications have proved essential in order to fully exploit the medical, environmental and economic potential of biotechnology in line with high ethical standards. Non-implementation of this Directive is putting the European biotechnology sector at a serious disadvantage. Despite the Commission's efforts to co-operate closely with them in order to try and accelerate the implementation procedure, the Member States concerned failed to reply satisfactorily to formal requests in the form of reasoned opinions - sent by the Commission in December 2002. Information concerning current infringement procedures against all Member States is available on the Europa website. Back to top   Harmonisation On the 14th of July, 2003 the European Commission decided to pursue infringement procedures against thirteen Member States for failure to implement or for implementing incorrectly in national law various Internal Market Directives and EC Treaty obligations. The Commission will formally ask Belgium, Germany, Spain, Greece, France, Ireland, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden and the UK to implement quickly the necessary legislation in a total of 16 cases covering Directives on copyright and exchange of securities markets information, along with the Second Postal Services Directive. The Commission has also decided to request Greece to amend its legislation in order to implement correctly the First Postal Services Directive. These requests will take the form of "reasoned opinions", the second stage of the infringement procedure under Article 226 of the EC Treaty. Should a Member State which has received a reasoned opinion fail to give a satisfactory reply within the deadline (usually two months), the Commission may refer the matter to the European Court of Justice. In addition, the Commission has decided, under Article 228 of the EC Treaty, to send further reasoned opinions requesting France and Ireland to comply immediately with judgments of the European Court of Justice, requiring France to implement EU law on product liability and Ireland to ratify the Berne Convention for the protection of literary and artistic works (Paris Act, 1971). If the countries concerned do not comply, the Commission can ask the Court to impose daily fines. Back to top Community Trade Marks Community trade marks are valid EU-wide on the basis of a single application to the Office for Harmonisation in the Internal Market (OHIM). This unitary system was established in December 1993 by Council Regulation. OHIM creates database of geographical indications On 24 January 2008, it was reported that the OHIM had created a database containing geographical indications of wines, spirits, agricultural products and foodstuffs protected under Community Regulations and Bilateral Treaties between the European Commission and third countries. The publicly accessible database, in Excel format, is to be used by examiners when examining Community Trade Mark applications. To access the database, click here OHIM releases new brochure on national laws relating to the Community Trade Mark and the Community Design On 16 January 2008 the OHIM releasedan updated edition of its publication “National Law Relating to the Community Trade Mark and the Community Design”. The third edition of the brochure lists the national trade mark and design laws in the 27 member states of the EU and related international treaties. It also covers issues including the treatment of “earlier rights” in member states, national provisions on the effect of seniority claims, and sanctions for the infringement of a Community Trade Mark. To access the brochure, click here New OHIM guidelines on opposition, cancellation and international marks enter into force On 29 November 2007, the OHIM adopted, by a decision of the President, a number of guidelines with regards to opposition, cancellation proceedings, and international marks. These guidelines entered into force on 30 November 2007. To access the decision, click here The OHIM Annual Report for 2006 published In March 2007, OHIM released its Annual Report for 2006. The report includes updated information about the Office’s reorganisation of its trade mark operations, as well as statistical data regarding its procedures, fees, performance and accountability. According to the report, in 2006 OHIM received close to 20% more Community Trade Mark (CTM) applications than in 2005. Also, over 60% of CTMs filed in 1996/97 were renewed for the subsequent 10-year period. In addition, the number of CTM applications filed topped 70,000 for the first time. The amount of Community Design applications filed also experienced an upward turn – reaching nearly 18,000. To access the Annual Report, click here For archived material, click here OHIM seeks comments regarding Draft Guidelines on International Marks The Office for Harmonization in the Internal Market (Trade Marks and Designs) seeks comments regarding its Draft Guidelines on International Marks. The changes have been made in a number of parts of what used to be Chapter 13 of the Examination Guidelines and new parts have been added. Comments were due by 12 March 2007. The process of formal adoption of revisions of the guidelines will be finalised in 2007. For more information, click here Related: Revision of Trade Marks and Designs Examination and Opposition Guidelines The EU's Office for Harmonization of the Internal Market (Trade Marks and Designs) is revising its Guidelines. Comments regarding the Draft Examination and Draft Opposition Guidelines were welcome no later than 30 September 2006. The process of formal adoption of revisions of the guidelines will be finalised in 2007. For more information, click here On September 23, 2003 the European Parliament approved with 10 amendments a proposal presented to it by the European Commission dated 27 December 2002 for a Regulation modifying existing procedures for the granting of Community trade marks. The amended proposal was then unanimously approved by the Council of Ministers at its meeting from 26th to 27th November, 2003. After finalisation of the text the Council will adopt the Regulation at a forthcoming meeting. The new Regulation is aimed at reducing red tape and making it easier for third country nationals to secure protection under the Community Trade Mark registration system. Besides procedural changes such as the abolition of nationality and reciprocity conditions for application for a trade mark, the key substantive features of the new proposal are: Abolition of search system: The proposed Regulation would abolish the system of searching set up under the existing Community Trade Mark Regulation (40/94/EC CTMR). That system was intended to help applicants for CTMs to monitor effectively the possible existence of prior conflicting rights, but has not proved satisfactory in practice. The Commission found that the system of searches prolongs unnecessarily the procedure for the registration of trade marks and imposes an administrative burden on national offices, the OHIM and applicants. The abolition of the search system would bring the trade marks system closer into line with the Regulation on community designs. Professional representation: The existing scheme allows professional representation by lawyers or other qualified persons on behalf of applicants to register trade marks at the OHIM. The new proposal would amend the Regulation's provisions to bring them fully into line with the principles of freedom of establishment and freedom to provide services. Once registered, professional representatives would retain their registration, regardless of where they resided or conducted business. As a general recommendation, member states will have to ensure that national representatives all over the EU have equal access to information and know-how. The Commission will also invite affiliated NGOs to consider adopting a voluntary, non-binding code of conduct for professional representatives in consultation with the Commission and the OHIM. Boards of Appeal: Experience and an assessment of the functioning of the Community trade marks Boards of Appeal have revealed a need for improvement in certain areas, mainly relating to giving the Boards additional means of improving their efficiency and output. The measures proposed would allow for the formal appointment of a Chairman of the Boards of Appeal and of an enlarged Board which should improve consistency in decision-making, as well as allowing decision-making by a single member. The Sixth International Trademark Conference was held in Alicante, Spain, from April 28-29, 2005. Items on the agenda included: The enlargement of the EU Adherence of the EU to the Madrid Protocol Enforcement of trademark rights in the EU and beyond For more information, click here European Judges' Symposiums These Symposiums were held in Alicante from 29-30 September, 2005. Every two years the Office for Harmonization in the Internal Market (OHIM) organises a European Judges’ Symposium on trade mark and design issues. These Symposiums aim to promote harmonisation in the application of the Community trade mark and Community design regulations at all jurisdictional levels and, in particular, at the level of Community trade mark and design courts. These are national courts of the EU Member States which have jurisdiction in disputes concerning the infringement and the validity of Community trade marks and Community designs. Click here for more information. Back to top Community Designs OHIM invites comment on Community Designs renewal guidelines The OHIM recently launched a public consultation on the draft guidelines for renewing a registered Community Design which will be adopted in early 2008. The purpose of these Guidelines is to explain how, in practice, the requirements of the Regulation on the Community Design, the Community Design Implementing Regulation, and the Community Design Fees Regulation will be applied by the Office in the renewal of a registered Community Design. The Guidelines assist will serve to assist the staff members of OHIM to consistently apply the Regulations to renewal proceedings. Submissions closed 15 December 2007. For more information, click here EU joins Hague design agreement On 1 January 2008, the Geneva Act of the Hague Agreement, which establishes a system for the international registration of industrial designs, entered into force for the European Community. This creates a link between the Geneva Act of the Hague Agreement administered by WIPO and the Community Design system administered by the Office for Harmonization in the Internal Market. EU companies will now be able to use a single application to obtain protection of a design in the EU and in the countries which are members of the Geneva Act. The process aims to reduce costs and simplify procedures and administration for international design protection. For more information, click here EU submits its instrument of accession to join Hague system on international designs The European Union submitted its instrument of accession to the Geneva Act of the Hague Agreement to WIPO on 24 September 2007. This accession will allow EU companies, with a single application, to obtain protection of a design throughout the EU with the Community Design and in the countries which are members of the Geneva Act. The new system will enter into force on 1 January 2008, and is intended to simplify administration procedures and lower the costs of obtaining protection. For more information, click here European Commission to link the Community design registration system with the WIPO international system On 24 July 2007, it was announced that the European Commission has adopted two Regulations necessary to link the Community design registration system with the international design registration system administered by WIPO under the Geneva Act of the Hague Agreement. The Regulations will allow EU companies, with a single application, to obtain protection of a design throughout the EU with the Community Design and in countries that are members of the Geneva Act. The Regulations will enter into force once the Geneva Act is applied to the Commission. It is expected that the new system will be available to users from beginning of January 2008. For more information, click here European Commission welcomes Parliament support on proposals to link the EU Community Design system with WIPO’s international system On 18 May 2006, the European Commission welcomed the European Parliament’s vote supporting the Commission’s proposals to link the Community Design system, which protects designs within the EU, with the international design registration system of WIPO. The proposals would allow companies, with a single application, to obtain protection of a design throughout the EU with the Community Design and also in the countries which are members of the Geneva Act of the Hague Agreement regarding the international registration of industrial designs. It is hoped that the ‘simplified procedure’ would led to a saving of costs. According to the Commission, there would be no need to provide translations of documents, to keep watch on the different deadlines for renewal of various national registrations, or to pay a series of national fees and agent fees in different countries. For more information, click here The OHIM Annual Report for 2006 published In March 2007, OHIM released its Annual Report for 2006. The report includes updated information about the Office’s reorganisation of its trade mark operations, as well as statistical data regarding its procedures, fees, performance and accountability. According to the report, in 2006 OHIM received close to 20% more Community Trade Mark (CTM) applications than in 2005. Also, over 60% of CTMs filed in 1996/97 were renewed for the subsequent 10-year period. In addition, the number of CTM applications filed topped 70,000 for the first time. The amount of Community Design applications filed also experienced an upward turn – reaching nearly 18,000. To access the Annual Report, click here For archived material, click here On 12 December 2001 the European Council adopted the Regulation on Community Designs to introduce a Community-wide system for the protection of designs. The Regulation aimed at fostering creativity and innovation by giving designers the ability to obtain protection throughout the entire internal market through a single, inexpensive application. This will remove market distortions and restrictions on the free trade of goods, which are created by different individuals holding national rights in one design. On 21 October 2002, the Commission adopted a further regulation to lay down the necessary measures for implementing the provisions of Regulation (EC) No 6/2002 and to ensure the smooth and efficient operation of design proceedings before the Office. The Regulation deals: with filing applications; inspections; priorities; a community designs bulletin and database; proceedings; and numerous other matters. From 1 April 2003, the applications for Community designs received since 1 January 2003 that have been registered by the Office for Harmonization in the Internal Market (OHIM) were made available to the public. Community Design registration will offer companies EU-wide protection with a single application. However, companies will still have the option of registering designs under national law if they prefer. Design registrants are granted exclusive rights to use their designs and to prevent any third party from using the designs throughout the EU for up to 25 years. In addition, designs meeting the Regulation's requirements can also benefit from protection from premeditated copying even without prior registration with OHIM. As of July 2004, the OHIM began delivering decisions on invalidity of Registered Community Designs. Third parties are able to object to a registration by filing an invalidity request with OHIM based on prior art, or other, earlier rights. OHIM will cancel the registration where the facts and evidence presented by the third party prove that the contested Community design does not fulfil the requirements for protection. For more information, click here. Registered design information is available on the OHIM's website. Back to top Community Utility Models The European Union is working towards the harmonisation of national utility model systems. At present, the levels of protection offered by member states differ widely, thereby hampering the level of competition and the movement of goods in the internal market. In December 1997 the Commission presented a proposal for a Directive on the protection of utility models. After taking into account the comments of the European Parliament, the Commission revised and re-launched the proposed Directive in June 1999. Not only does the proposed Directive harmonised existing laws, it requires three member states (the United Kingdom, Luxembourg and Sweden) to introduce completely new systems. Under the proposed scheme, utility models could be granted for all products and processes, apart from biological material and chemical or pharmaceutical products and processes. The criteria for a utility model would basically be the same as for a patent, except that the level of inventiveness required would be lower. Inventiveness would be satisfied if a product or process represents an advantage and, from the point of view of a skilled worker, is not very obviously derived from the state of the art. Utility model applications will be granted without examination, to provide a fast, low cost means of obtaining protection ' particularly for smaller enterprises. The period of protection is an initial 6 year period which may be extended to 10 years.  Work on the proposed Directive was suspended in March 2000 due to the difficulty of reaching agreement between member states. In July 2001 the Commission published a Staff Working Paper inviting comments on the introduction of a Community Utility Model. Forty-seven responses were received prior to the November 2001 deadline. A summary report of these responses was issued in March 2002. Three-quarters of respondents opposed the introduction of a Community Utility Model. Most of these opponents sought a recommencement of work on the proposed Directive to harmonis