Patents to protect IP

This detailed analysis by the Innovation Council critically examines the proposed international instrument with respect to the patent system, R&D, and avoiding legal uncertainty.  We highlight challenges in achieving transparency, legal certainty, and the impact on R&D commercialization. With insights into the balance between protecting indigenous knowledge and fostering innovative landscapes through the patent system, this report underscores the need for clear definitions and harmonized global standards.

Click here to read our analysis.

The following document is an account of the statement made by Innovation Council at the World Intellectual Property Organization surrounding the EU standard essential patents (SEPs) regulation. We provide a summary of discussions that took place in WIPO and highlight common misconceptions about SEPs in the real economy before ending with some key takeaways.

Click here to read our statement.

InterDigital CEO and President, Liren Chen, discusses SEP regulation in this letter to the editor of the Financial Times. The message is clear: regulators should tread carefully. In his convincing argument, Chen discusses why preserving a balance between innovators and implementers is key and advises the use of market based solutions.

Click here to read the letter.

This document provides a synopsis of the remarks made by Jennifer Brant, the executive director of Innovation Council, at the TRIPS Council Special Session in September of 2023. Jennifer discusses three of her most prominent works: Unprecedented (2021, co-authored with Prof. Mark Schultz), Making Biologics (2022), and Biomanufacturing Resilience (2023). She noted that the topic of the Special Session – extension of the 2022 TRIPS decision – is really about ensuring adequate health products supply and extending biomanufacturing capacity, for health security.

Jennifer spoke in her personal capacity.

Click here to read the synopsis of her remarks.

The Standard Essential Patents Regulation (SEP Regulation) is moving through the EU legislative process, with the draft Regulation now under review by the Parliament. This background document presents the fundamentals of cellular technology innovation, standardization, and IP management. It also unpacks key elements of the draft Regulation. It is intended to serve as a resource for lawmakers and other stakeholders, to provide context for the EU legislative process.

Click here to read the background document.

This article from IP scholar Adam Mossoff presents the proposed EU SEP Regulation, which is due to
be released on 26 April by DG GROW.

According to Mossoff, the leaked SEP Regulation would be counterproductive to a range of European
goals, including ongoing innovation in cellular technology and a central role in standardization. He
points out that available evidence suggests that, at best, the SEP Regulation is unnecessary – and
that, at worst, it could stunt innovation and economic growth in the EU in the years to come.

A concern raised by the author is that the EUIPO has no previous patent law experience, yet the SEP
Regulation plans to hand full control of important SEP issues to the EUIPO. The EUIPO would
determine what patents are able to be classed as essential, thus, SEPs, along with the appropriate
royalty rates for licensing such SEPs, in addition to mandating public disclosure of licensing
agreements. Furthermore, it would also be able to prohibit licensing or litigation of SEPs that have
not been confirmed as essential, that have not been registered, or that have set a different royalty
rate for the relevant SEPs.

The author argues that, if adopted, the SEP Regulation would destabilize the global
telecommunications market as well as strongly favouring IP users over innovators.

Furthermore, Mossoff notes that this type of regulation could be advantageous for China, which
could leverage it to continue discriminatory treatment against Western innovators in cellular
technology. Overall, he expresses concern that the new EU SEP Regulation would negatively affect
technological innovation and economic growth in the EU by destroying incentives for SEP owners to
continue investing in R&D and participating in open standardization processes.

Click here to read the full article:

New EU Regulatory Regime for SEPs will Upend Mobile Telecommunications Sector, by Adam
Mossoff, 12 April 2023, IPWatchdog.

For further reading, additional resources about the leaked SEP Regulation include:

The European Commission’s SEP licensing plans are terrible on every level, by Joff Wild, 30 March
2023, IAM.

Exclusive: EU patent body to oversee tech-standard patent royalties – EU draft rule, by Foo Yun
Chee, 28 March 2023, Reuters.

European Commission departs from best practices in hasty preparation of standard-essential patent
policy proposal that is fundamentally flawed and unbalanced, by Florian Mueller, 29 March 2023,
FOSS Patents.

European Commission to propose radical new SEP/FRAND regime with major consequences for
patent owners, by Adam Houldsworth, 29 March 2023, IAM.

European Commission set to give EUIPO responsibility for standard essential patents: big challenges
lie ahead, by Trevor Little, 29 March 2023, World Trademark Review.

Proposed EU SEP regulation will also harm net licensees: implementers of standard-essential patents
must be careful what they wish for, by Florian Mueller, 2 April 2023, FOSS Patents.

This paper by Jonathan Barnett and other IP experts was released back in 2022 – but the analysis is still very relevant today. The authors unpack arguments that have been put forward for limiting what SEP owners can do with their patents, assessing such arguments based on available data, studies, and experience in the real economy. The authors endorse the current FRAND licensing framework, noting that it continues to work well to incentivize innovation and the broad dissemination globally, across sectors, of connectivity technologies. Highly relevant insights for policy initiatives like the EU SEP Regulation, and the forthcoming SEP work program at WIPO. Read more about their paper here.

The Geneva Network recently published analysis about the benefits from voluntarily licensing in the health space. The author argues that voluntary licensing was crucial during COVID-19, aiding the quick and large scale production of vaccines and therapeutics. Overall, it is noted that voluntary licensing can enable long term knowledge transfer, cooperation between companies, and increased flexibility and speed in the innovation process.

Click here to read the full story.

Ahead of the 2022 United Nations Climate Change Conference (COP27), the EPO today launched a new Clean Energy platform designed to support researchers and decision-makers involved in the race for clean-energy technologies that contribute to the UN SDGs.

The platform provides an initial selection of some 60 ready-made smart patent information searches to help scientists, engineers and decision-makers find and build upon existing green tech solutions with greater ease.

Click here to read more.