‘Press pause’ on SEPs proposal, Patent Office chief urges lawmakers

The President of the European Patent Office has urged lawmakers voting on a final deal on Standard Essential Patents (SEPs) today (28 February) to ‘press pause’, claiming that the regulation is not yet fit for purpose and the commission has rushed it through too quickly.

As reported, lawmakers at the European Parliament plenary session are set to greenlight the patent rules today, but member states have not yet agreed on their position, and a final deal on SEPs can only come under the mandate of the new European Commission, potentially in the second half of 2024.

“It is clear that whatever happens today, this proposal will not be passed during this legislative term,” António Campinos President of the Munich-headquartered EPO told Euronews in an interview, adding that the apparent rush with which the commission had attempted to push it through “has surprised many observers, including us… Especially given that there are still critical issues that need to be resolved if the regulation is to be fit for purpose”.

Campinos said that at this stage the EPO “is not convinced that the proposed measures are proportionate, or indeed necessary”, claiming the proposal failed to meet the commission’s own procedural ‘better regulation’ standards, “namely legislation that is evidence-based, and built on transparent consultation of all stakeholders and thorough impact assessments”.

“There was also no debate in the European Parliament’s Committee on Legal Affairs, before it was passed by the narrowest of votes,” Campinos said.

The Portuguese EPO president said that the proposal’s substance did not align with “simpler and better” legislation “avoiding unnecessary burdens”.

Under the commission’s plans, the EU Intellectual Property Office – EUIPO – will house a competence centre to administer databases, a SEP register and monitor arbitration of disputes related to SEPs licensing. This centre will carry out non-binding SEPs essentiality checks.

Campinos suggested in the interview that EPO suitability to carry out some of these tasks had not been adequately explored.

“For example, when creating the Unitary Patent, EU institutions knew it made more sense to entrust its administration to the EPO, and use the same patent grant process that is widely viewed as providing the highest quality patents, than to set up a new EU agency,” he said adding that “The real question we should be addressing is whether there’s an opportunity to implement improvements that make effective use of already existing capabilities, rather than create new costly and complex structures for the taxpayer that are actually redundant.”

Campinos said that with nearly 400 amendments submitted by MEPs, questions from EU member states and the European Parliament’s Committee on International Trade remained unaddressed. “That’s a real concern as they cover many important aspects of the proposed regulation, especially on the proportionality of the proposed measures in view of the lack of evidence about its impact on technology markets.”

“Europe’s most renowned IP judges, including the President of the Unified Patent Court, have also raised similar concerns that the proposal does not respect fundamental rights such as access to justice,” said Caminos, adding that a policy brief by the EU executive last week suggested that the proposal discriminates against European firms and risks Europe’s competitiveness and leadership in standardisation – “an alarm bell rung by the very institution responsible for the proposal, from the lawmakers supposed to pass it, and from the judges that would apply and review it.”

“In light of all these doubts and this uncertainty, the only sensible cause of action is to push the pause button,” Caminos said, adding that “This would give sufficient time in the next legislature to answer all the outstanding questions, and draw up a proposal that does indeed meet all requirements for ‘Better Regulation’.”