On 27 April 2023, the European Commission presented its proposal. The proposed regulation aims at improving the licensing of SEPs by reducing the uncertainty that surrounds licensing negotiations and lowering transaction costs. In order to achieve these objectives, the Commission has considered different policy options. Of these, the Proposal implements (1) the setting up of a mandatory register for SEPs with essentiality checks of selected and representative random samples of SEPs, (2) the establishment of a process for determining a non-binding aggregate royalty rate, and (3) a mandatory pre-litigation conciliation procedure for FRAND royalty determination, combined with (4) voluntary guidance on SEP licensing. Institutionally, a new competence centre within the European Intellectual Property Office (EUIPO) is to be in charge of managing and performing these tasks.
27 opinions
Position Statement on the Commission’s Proposal for a Regulation on Standard Essential Patents
The Position Statement of the Max Planck Institute for Innovation and Competition of 6 February 2024 on the Commission's Proposal for a Regulation on Standard Essential Patents, assesses the proposal in the light of its adequacy to address the challenges of SEP licensing in the context of the Internet of Things and its potential for contributing to a balanced global SEP licensing. Preceding these assessments, the Institute elaborates on the legal and economic foundations of an innovation-oriented standardisation and outlines the context in which major problems addressed by the Commission’s Proposal arise.
Position Statement on New Genomic Techniques and Intellectual Property Law
A new Position Statement of the Institute addresses concerns related to intellectual property protection for genome-editing technologies and genome-edited plants in the EU. It proposes a set of policy recommendations to facilitate access to and utilisation of IP-protected genome-editing technologies and their products in the plant breeding sector.
On 5 July 2023, the European Commission issued a proposal for the regulation that intends to relax the requirements for marketing authorisation of plants obtained by certain new genomic techniques (NGTs) in the EU. While NGTs are expected to become more appealing to breeders and farmers, the complexity of the intellectual property (IP) landscape surrounding NGTs and resulting products can have a discouraging effect on innovation. In view of numerous concerns related to IP protection for NGTs and NGT-derived plants, a research group at the Institute has developed a set of policy recommendations that can facilitate access to and utilisation of IP-protected NGTs and their products in the plant breeding sector.
To the Position Statement:
Position Statement (8 August 2023) on New Genomic Techniques and Intellectual Property Law: Challenges and Solutions for the Plant Breeding Sector
More on this topic:
CRISPR/Cas Technology and Innovation: Mapping Patent Law Issues
Position Statement on the Implementation of the Digital Markets Act (DMA)
The DMA entered into force on 1 November 2022 and applies from 2 May 2023. It aims to ensuring contestable and fair markets in the digital sector across the EU where gatekeepers are present. In its position statement of 2 May 2023, the Institute acknowledges that uniform rules for core platform services throughout the EU and a centralised enforcement are necessary to prevent internal market fragmentation and welcomes the first Commission Implementing Regulation for the DMA of 14 April 2023. However, it remains concerned by the DMA’s unique institutional design and its interaction with other laws as outlined under Articles 1(5), 1(6) and 1(7).
In particular, the Institute raises awareness about possible overly broad blocking effects of the DMA on national rules, which may have the unintended consequences of privileging gatekeepers by jeopardizing future national legislative initiatives. This ultimately obstructs the achievement of contestability and fairness in digital markets. A complementary application of the competition rules and an effective enforcement of the DMA is, against this backdrop, crucial. Yet there is uncertainty over administrative enforcement mechanisms, and it is unclear what role private enforcement plays in the current legal design of the DMA. The position statement identifies and examines challenges in the implementation of the DMA, along with recommendations for meeting them.
Commission Implementing Regulation for the DMA of 14 April 2023
Revisiting the Framework for Compulsory Licensing of Patents in the EU
In the context of the European Commission's public consultation on “Compulsory licensing of patents in the EU”, the Institute has published a position statement. The authors around Reto M. Hilty welcome that the Commission wants to reinvigorate the public discourse on this important topic. However, according to the authors, the Commission’s reform proposal does not take things far enough.
Text of the position statement on SSRN: Revisiting the Framework for Compulsory Licensing of Patents in the European Union
Webpage about the Initiative of the European Commission
Position Statement on the Design Package
On 28 November 2022, the EU Commission adopted proposals for a revised Regulation and Directive on designs (Design Package). The aim of the proposals is to streamline and simplify procedures, promote harmonisation and improve the functioning of design law. In its position statement of 23 January 2023, the Institute welcomes the overall aim of the proposals. However, some points deserve further comment and clarification. Here, the focus of the remarks lies on substantive law.
Position Statement as pdf:
Position Statement of the Max Planck Institute for Innovation and Competition of 23 January 2023 on the ‘Design Package’ (Amendment of the Design Regulation and Recast of the Design Directive)
by
Annette Kur, Tobias Endrich-Laimböck, Marc Huckschlag
Further information on the webpage of the European Commission:
Intellectual property – review of EU rules on industrial design (Design Directive)
Position Statement on the Decision of the WTO Ministerial Conference on the TRIPS Agreement
On 17 June 2022, the WTO Ministerial Conference adopted a long-awaited decision on the TRIPS Agreement. The Decision has not waived any intellectual property rights as such, as proposed by India and South Africa in October 2020. Instead, it mainly clarifies the application of the existing TRIPS flexibilities. As a follow-up to its earlier Position Statement, the Institute issued a paper that outlines the legal and practical implications of the Decision.
This second Position Statement, which follows the Institute's Position Statement of 7 May 2021, reflects on the legal and practical implications of the Ministerial Decision in view of the ultimate goal of overcoming the COVID-19 pandemic. A particular focus here is on TRIPS flexibilities relating to compulsory licensing of patents.
Position Statement on the EU Data Act
Data generated through the use of digital services and products offer enormous economic potential. The EU Data Act is intended to regulate access to and use of such data. But does the current legislative proposal ensure that the interests of all stakeholders are adequately taken into account? A research group at the Institute has analyzed this question and written a comprehensive position statement on the subject.
Directly to the Position Statement (PDF).
Opinion
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09/08/2021
Artificial Intelligence Systems as Inventors?
Position Statement of the Max Planck Institute for Innovation and Competition of 7 September 2021
Opinion
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05/07/2021
Covid-19 and the Role of Intellectual Property
Position Statement of the Max Planck Institute for Innovation and Competition of 7 May 2021
Signing the Position Statement
If you want to sign the position statement as a supporter, please send us your name, title, affiliation and position to covid(at)ip.mpg.de or you can use the following form.
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Opinion
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04/09/2021
Artificial Intelligence and Intellectual Property Law
Position Statement of the Max Planck Institute for Innovation and Competition of 9 April 2021 on the Current Debate
View the statement (pdf)