On 14 August 2020, CIPA submitted a response to the EU Commission's proposed roadmap for its Intellectual Property Action Plan [i]. This EU initiative aims to upgrade the IP system, promote its smarter use, ensure better enforcement and promote fair play globally for IP.
We welcome the Commission’s Roadmap and invitation to provide views on the IP action plan. All areas are of direct interest to the businesses our members represent. We look forward to making more specific comments as more detailed proposals are developed. We particularly welcome the objective of well-calibrated and balanced IP policies. These clearly need to take into account the interests of innovators and owners and also competitors.
Upgrading the system for IP protection, bearing in mind that businesses favour certainty:
• This should not necessarily mean making IP rights continuously stronger, but providing an appropriate balance for different interests e.g. enabling the Unitary Patent system to offer a “one-stop-shop” for patent protection and enforcement to include, in addition to “patent protection and enforcement”, “and challenge”.
• There is no reference to the EU trade mark system. Although recently reviewed, there remains the problem, and recent Court of Justice decisions emphasise this, of trade mark cluttering, which means that those with marketing and branding ideas are often inhibited by the trade mark space being cluttered with rights the owners never had any intention to use or which they only had the intention to use in order to threaten or inhibit legitimate branding.
• We welcome a review of EU legislation on industrial designs. Developing case law has lead to confusion between the boundaries of industrial design protection and copyright protection.
CIPA supports the aim of promoting voluntary licensing and sharing of IP. A positive step would be to develop toolkits, including template agreements, for different types of collaboration and licensing arrangements. They could accelerate discussions and negotiation, although the templates should be seen as sensible starting points rather than fully negotiated agreements. The UK’s Intellectual Property Office has a very successful toolkit for collaborations between universities and businesses that is a useful reference for such a project.
Fighting IP theft
We endorse the importance of effective tools to restrain infringement of rights, and in addition that particular attention should be paid to areas in which organised crime may become involved. It is also however important not to create a system which acts as a material deterrent to bona fide competitors. Unexamined rights need particular consideration. Privacy rights for domains with a commercial linkage should be included in the review. The possibility of concealing the identity of the owner even when engaged in commercial activities creates a significant barrier to effective IP enforcement against infringement occurring through web domains.
Artificial intelligence (AI)
An increasing number of inventions are generated by an AI system. This leads to a number of practical and legal issues for the patent system, including how to determine the patentability, ownership and appropriate scope of protection for such inventions. Some people are concerned the current law makes it difficult to patent valuable inventions created using an AI system – others worry that if patents are allowed for inventions created solely by AI systems, the patent offices might be overrun. The Commission could take a lead in this area by collecting evidence regarding the current situation - e.g. it remains a point of contention whether AI systems are themselves capable of generating a patentable invention. Based on such evidence, the Commission could then work to develop best practices with other bodies such as the EPO and WIPO.