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Innovation Law and Policy in the European Union

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Abstract

In this section we explore three main obstacles to the development of an effective and coherent innovation policy in the European Union: the saga of the EU patent, the problems faced by technology and knowledge/transfer legislation, and EU standardization policy. We find that in these areas, despite a long-standing debate and several attempts to converge on more socially desirable outcomes, a lot still needs to be done before the European Union will be able to count on effective and efficient legal rules and institutions that could serve as catalysts for breakthroughs in research and innovation in the EU27.

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Notes

  1. 1.

    The main international instrument is the Paris Convention for the Protection of Industrial Property, of 20 March 1883, revised several times.

  2. 2.

    The Convention on the Grant of European Patents of 5 October 1973 as amended by the act revising Article 63 EPC of 17 December 1991 and by decisions of the Administrative Council of the European Patent Organization of 21 December 1978, 13 December 1994, 20 October 1995, 5 December 1996, 10 December 1998 and 27 October 2005, further amended by the London Agreement in 2000.

  3. 3.

    The European patent can be granted for up to 38 contracting states.

  4. 4.

    The European Parliament of Enterprises (Eurochambres) debated and voted “that the absence of a Community patent harms European business” on 14 October 2008.

  5. 5.

    The goal to obtain a Community patent while improving the existing systems was declared by the EC in [24, p. 7].

  6. 6.

    An increase in the number of patents is considered a plague that reveals the anticommons problem, generating huge transaction costs, reducing incentives to innovation and undermining the very innovative process that intellectual property rights should foster. See the traditional contribution of Heller and Eisenberg [51].

  7. 7.

    It is not by chance that the European Commission has raised the issue of access to the patent system for SMEs within the Small Business Act [28, p. 13].

  8. 8.

    As the WIPO noted, “the costs of protection may be perceived by many SMEs as exceeding the potential benefits to be obtained from protection, particularly considering that a significant part of the costs may be incurred before the product has reached the market” [112, p. 7].

  9. 9.

    Data are made available by the EC in [25, p. 2].

  10. 10.

    The map is available at http://www.worldmapper.org. For useful data on the production of patents in the USA, see [111] and [103].

  11. 11.

    As a matter of fact, a small number of patents is kept alive until the very last moment. At some point in time, the cost of renewal outweighs the advantages deriving from sales of patented items.

  12. 12.

    See [34]. A detailed account of costs and potential savings by a Community patent system can be read in [19]. See also data provided in the Annex I in [25, p. 17].

  13. 13.

    To further the position of patent applicants in the USA, the USPTO has proposed in 2010 a change in the patent law that would effectively allow a 12-month extension to the provisional application period. In this way, applicants would be given additional time to determine whether patent protection should be pursued and would enjoy a deferment in the payment of fees.

  14. 14.

    The full name is ‘Agreement on the Application of Article 65 of the Convention on the Grant of European Patents’.

  15. 15.

    Two cases are often taken as an example of inconsistent results: the Sara Lee/Phillips Electronics case and the Document Security Systems v. European Central Bank case, where the rulings of judges differed across member states.

  16. 16.

    Important papers and contributions have been produced on this topic. For instance, see [93] (“Patent quality is the capacity of a granted patent to meet (or exceed) the statutory standards of patentability - most importantly, to be novel, non-obvious, and clearly and sufficiently described.”).

  17. 17.

    There is a conspicuous body of literature and policy studies to support this statement. See, e.g., [38]. A signal of alarm on the situation of the USPTO came from Judge Paul Michel [80].

  18. 18.

    Maskus [77] warned about the risks of a patent policy based on a “the more the better” approach at the cost of lower quality.

  19. 19.

    After a number of years of public and congressional debate, on 16 September 2011, the Congress of the United States enacted the Public Law 112–29, Leahy-Smith America Invents Act, introducing significant changes in the patent system that aim to modernise it and ensure higher quality of patents and fairness in the procedure. For comments see [101].

  20. 20.

    This feature of patent litigation has produced serious problems for patent owners, due to the so-called torpedo.

  21. 21.

    Lanjouw and Shankerman [63] have demonstrated that individuals and small firms in the USA can be at a significant disadvantage in protection of their patent rights because of the small size of their portfolios. See also [71].

  22. 22.

    Notably, a post-grant opposition procedure is available at the EPO but not in the USA, where validity actions fall immediately under the jurisdiction of the civil (federal) courts.

  23. 23.

    As the Union replaced the Community, the “Community” patent became the “unitary” patent. Of course, the use of “European” was precluded to avoid confusion with the title granted by the European Patent Office under the EPC.

  24. 24.

    This study estimates that an integrated patent litigation system would generate savings of €148 – 289 million by 2013.

  25. 25.

    Patent policy is part of the European Union’s broader consideration of intellectual property rights in general. Many of the features of a high-quality, balanced, consistent and affordable patent system are desirable for all other forms of exclusivity and this point has been made clear in [27, p. 5].

  26. 26.

    This is a typical situation of obstacles created to law reform processes by incumbent groups opposing the challenge of competition in a wider scenario. For a description of counteractions to the competition of legal systems see [88, p. 411].

  27. 27.

    According to [19, p. 32], the business sector (including SMEs) would earn €250 million, and the EPO and NPOs €43 and 78 million, respectively. Net financial flows for patent agents and translators would amount to €-270 million and €-121 million for lawyers. “In other words, nearly €400 million would be redirected from patent attorneys, translators and lawyers to patent offices and the business sector” [109, p. 5].

  28. 28.

    As recalled in [27, p. 10], as far as SMEs are concerned, the Small Business Act also sets out, as one qualifying action, the encouragement to SMEs to benefit more from opportunities offered by the internal market and its systems of intellectual property protection. If the patent system is not adequate, the encouragement is useless.

  29. 29.

    See [94]. Interesting data, as far as the US market is concerned, are provided by [46, p. 1318].

  30. 30.

    Law and economics literature has explained that costs related to patent protection trigger a comparison with alternative forms of protection, including trade secrecy. See, among others, [41] and [89].

  31. 31.

    Already in 2007, Pro Ton Europe – the European Network of Technology Transfer Offices in Public Research Organizations – advocated the reduction of filing and maintenance fees for universities, as happens in the USA (Pro Ton Europe, Brussels, 31 August 2007).

  32. 32.

    A clear policy proposal is made by Van Pottelsberghe [109, p. 7] to reduce fees for SMEs and YICs.

  33. 33.

    Differences in procedures could make the outcome of litigation highly unpredictable.

  34. 34.

    One form of support could be financial to cover costs of litigation or to buy insurance policies for patent litigation, a kind of product that has low diffusion and high costs.

  35. 35.

    See data provided for the European Commission in [91, p. 11].

  36. 36.

    The IP5 Group includes patent offices from Europe (EPO), US (USPTO), Japan (JPO), Korea (KIPO) and China (SIPO). It works on ten work-packages, each one led by one of the offices.

  37. 37.

    Indeed, in the USA data and policy studies support the assumption about the link between an efficient, cost-effective, high-quality patent system and economic growth. See [94].

  38. 38.

    Interestingly, the Commission is considering using the legal basis of article 118 for the creation of an optional “unitary” copyright title (see [34, p. 11]). The unitary effect is thus becoming a surrogate for federal titles that cannot be created otherwise.

  39. 39.

    Decision 2011/167/EU, in O.J. March 22, 2011 L 76/53.

  40. 40.

    The appeal was filed before the Court of Justice on 31 May 2011.

  41. 41.

    More specifically, see articles 142 EPC, 45 PCT and 19 of the Paris Convention.

  42. 42.

    This argument about the unfair advantage that the tri-lingual system would cause for countries other than France and Germany has been used to oppose the enhanced cooperation and to criticise the project. It appears weak if one considers how its effects can be mitigated with a system of reimbursements and to some extent is the necessary step to a unitary patent system that relies on the existing European Patent Organization, rather than starting from scratch.

  43. 43.

    For costs, see Section 3.2.5. Estimates of savings are available in [25, p. 8].

  44. 44.

    See Court of Justice of the European Union, 8 March 2011, Avis 1/09.

  45. 45.

    The reference is clearly to the Brussels system, including the Brussels Convention of 1968, the Brussels I Regulation and the Lugano Convention.

  46. 46.

    An initial reference to the Fifth Freedom is in [27, p. 3].

  47. 47.

    For the definition, see Section 1.3.4.

  48. 48.

    This was also a point made by President Barroso in his speech at the European Innovation Summit, European Parliament, Brussels, 13 October 2009.

  49. 49.

    The European Commission has repeatedly suggested that innovation should not be considered only as a technical fact (see, for instance, [31, par. 3.3]). Under a truly holistic view innovation is abroad concept that embraces also services, the environment, the educational system and energy policy.

  50. 50.

    Official data are taken from the Green Paper [36, p. 3]. An even more impressive picture of resources available under EU-funded programs is available in Chapter 2.

  51. 51.

    See Chapter 1 for discussion about possible policy routes.

  52. 52.

    This point is extremely clear in [31, p. 9].

  53. 53.

    The last disappointing example was the approach of the conference in Copenhagen. A few days after the conference closed, there was silence on the issue of climate change.

  54. 54.

    There is a problem of discriminating technologies by denying protection, since under the TRIPs Agreement discrimination is not allowed. On access to pharmaceuticals for countries poor in manufacturing capabilities, see [55, p. 28].

  55. 55.

    An empirical study conducted by Hall and Helmers [49] seems to reinforce the idea of mixed business models for CRTs, based on both exclusivity and open innovation.

  56. 56.

    The idea was first developed by Cohen and Levinthal [16] and in its original formulation refers to such organisations as research teams of firms, but it can be easily applied to states.

  57. 57.

    A structured proposal is offered by the Alliance for Clean Technology Innovation (ACTI), a group of leading companies, including 3M, Air Liquide, Alstom, ExxonMobil, General Electric, Microsoft, Philips, Siemens and Vestas. The proposal for the creation of technology centres is provided in a concept paper titled “Climate Change Technology Centers”, 2 October 2009.

  58. 58.

    For a discussion of patent quality as a crucial policy issue, see Section 3.4.5.

  59. 59.

    The Licensing Executives Society (LES) periodically administers a survey to its members to assess the development of markets for technology and to highlight the most relevant impediments that are still in place.

  60. 60.

    eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).

  61. 61.

    See Section 3.11.

  62. 62.

    Although very volatile, there is a difference between non-practicing and non-manufacturing entities, since manufacturing refers to the production whereas practicing is meant as any form of use of the technology (including manufacturing). The difference can be more easily grasped when considering research centres, which are technically non-manufacturing entities, even though they cannot be treated as pure patent-holding entities, since doing research is a way to practise. Most notably, universities are nonmanufacturing institutions, and yet they cannot be considered non-practising entities.

  63. 63.

    Whereas an ambush is often referred to as an act rather than the entity that practises it, the latter is often assimilated to a “troll”. There are multiple bibliographic references on SSOs, patent ambushes, FRAND and RAND commitments. For a description of the role of SSOs in the modern patent system, see [65]. For the problem of hold-ups in the standard setting context, see also [18]. Contrast with [22]. See also [66] and [95].

  64. 64.

    After the decision in Bilski v. Kappos, 130 S. Ct. 3218 (2010), the future ofbusiness method patents in the USA seems to be facing a serious obstacle.

  65. 65.

    For a complete review, see the highly documented report of the OECD [87].

  66. 66.

    For definitions, see SEC Release No. 34–37619 (29/8/1996), 186; CESR (2002), Standards for Alternative Trading Systems (“CESR ATS Standards”), CESR/02-086b, July.

  67. 67.

    The Italian solution is of particular interest, as the ministry requires the use of a specific rating tool to assess the credit merit of the firm that applies for funding under the Fondo Nazionale per l’Innovazione (FNI).

  68. 68.

    One of the authors of this book is a member of the IPR Expert Group appointed by the DG Enterprise of the European Commission. The view herein expressed can be referred exclusively to the authors

  69. 69.

    For a complete review, see [86, p. 30–39].

  70. 70.

    See Section 3.6.

  71. 71.

    In [28, p. 15] the European Commission noted that only around three out of ten SMEs in Europe indicated that in 2007 they had introduced new products or generated revenues from new products. This is clearly evidence of the difficulties smaller firms encounter in managing innovation due also to a lack of expertise, as well as of human and financial resources.

  72. 72.

    The Italian platform for rating patents is now currently being expanded and adapted for design.

  73. 73.

    The European Commission has also been concerned with guiding firms and institutions with the measurement of intangible capital. See the Report [99].

  74. 74.

    According to the definition proposed by the European Commission, standards are voluntary documents that define technical or quality requirements with which current or future products, production processes, services or method may comply; see [35].

  75. 75.

    See, for a detailed description, [20].

  76. 76.

    See [20, p. 12]. The same study quotes earlier surveys such as that conducted by the German Occupational Safety and Health committee, which found that 35% of SMEs had no idea of sources from which to find information about standards. Also NORMAPME reported that finding information about standards - including whether a given standard is still in place - is among the most difficult issues for SMEs. In addition, SMEs also have difficulties in understanding the context of the standard, such as the references to other standards, etc.

  77. 77.

    See [37]. The Expert Panel for the Review of the European Standardization System (EXPRESS) comprised 30 individual experts from European, national and international standards organisations, industry, SMEs, NGOs, trade unions, academia, fora and consortia, and public authorities from EU member States and EFTA countries.

  78. 78.

    Importantly, the rapid definition of a standard can be a factor that supports the process of transferring results of research projects to the market. This is the reason why, to some extent, the definition of standard is seen more and more as a process that must run parallel with R&D.

  79. 79.

    We acknowledge Sisvel for the data, which were initially presented at one of the meetings of the CEPS Task Force on innovation

  80. 80.

    The position of the Commission can be read in [35].

  81. 81.

    The proposal for an amendment to the Regulation on European Standardization was introduced on 1 June 2011.

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Authors and Affiliations

  1. Department of Law, University of Foggia, Foggia, Italy

    Massimiliano Granieri

  2. Department of Management, LUISS Guido Carli, Rome, Italy

    Andrea Renda

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Granieri, M., Renda, A. (2012). Key policies. In: Innovation Law and Policy in the European Union. Sxi — Springer for Innovation / Sxi — Springer per l’Innovazione. Springer, Milano. https://doi.org/10.1007/978-88-470-1917-1_3

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