European

Dear all,

 

please accept my apology for a rather late notice. However, I thought you might be interested to join a Workshop on Compulsory Licences – or rather alternatives to Compulsory Licenses. Please see below the email of Bruno – who is conducting a study for the EU Commission with some introductory remarks:

 

As you can see from the attached support letter, the Impact Licensing Initiative (ILI) has together with the CEIPI University in Strasbourg and Ecorys made a consortium that has been tasked by the European Commission (DG Grow) to write a "Study on compulsory licensing in the field of intellectual property rights in case of a crisis".

 

The first phase of this mission has been completed : we gathered information about compulsory licensing cases throughout Europe and elsewhere in the world, and about the different legal regimes in Europe. We are now moving forward with formulating policy recommendations. And we want to collect views about these recommendations. Since the practical experience of stakeholders is suboptimal and not always up to date, we wish also to involve IP practitioners such as you, who have more experience and can represent stakeholders on a more neutral basis.

 

Therefore, our Consortium would like to invite representatives of LESI to attend our second Workshop on policy options that will be held on Thursday afternoon 9 – and Friday morning 10 June 2022 in the EU district in Brussels. Those who attended the "LESI meets the EU Commission" workshop in 2017 about the Trade Secrets Directive know how such events can look like and how these can contribute to the Commission's IP policy. This occasion is certainly as important.

 

Our Workshop will be held in the presence of members of the EU Commission (DG Grow) but under the Chatham House rule to enable open discussions. Participants' names to the Workshop are known only to the EC and will not be made public.

 

 

Further information on the scope of the study is contained in the following summary of Bruno:

 

Our Consortium would like to invite the LESI membership to give input on certain policy options that the EU Commission is looking for.

 

The reason why our non-profit organisation Impact Licensing Initiative was picked for this job is that we published two years a study about "Impact Licensing for technology access during a health crisis" which you can find at https://op.europa.eu/en/publication-detail/-/publication/8576381e-2ece-11eb-b27b-01aa75ed71a1/language-en

 

This new study about compulsory licensing (CL) will start from the principle (to be debated) that a CL should remain a "last resort" option and that other means to gain access to technology should be explored as well. Or that the current CL's should be reviewed to make them more effective.

 

I give by way of example a couple of possible policy options :

 

1. Is there a need for a more harmonized procedure amongst the member states to give parties access to a CL ? Should this procedure not be made exclusively available via courts, instead of via government-controlled bodies ?
2. Can access to technology be organized on a temporary basis to cope with a crisis, or can it only be organized in a more permanent way ? Because once access is given to trade secrets and know-how, this process cannot be rolled back.
3. Is the current praetorian rule that provides for the absence of exhaustion of rights for products made under a CL (CJEU decision in Pharmon vs. Hoechst) still desirable if we want a global solution in the single European market ?
4. Can any useful lessons be drawn from the FRAND procedures for setting the royalty rate in CL's ? Please note that FRAND is the topic of another study and that we cannot touch this topic unless unavoidably relevant for CL's.
5. What alternatives exist that encourage ex ante and voluntary licensing mechanisms where IP owners and the societal needs can be met in cases of a crisis in the health, food, energy or other technology sectors ?
1. See the ILI report of 2020 about clauses that might encourage IP owners to make their technology available
2. Should certain types of clauses be encouraged and exempted from competition scrutiny just as for the current block exemption regulations ?
3. Should the "licenses of right" as currently available for Unitary Patents be made available on a wider scale ? And are there certain standard clauses for such licenses to could be applied in case of a crisis ?

 

Regarding option no. 4, you will understand why our Consortium and the EU commission would like to hear the views of LESI.

 

With all this introduction the aim of our prep call this Wednesday is to determine what input LESI can give until the Workshop on June 9/10. We also welcome people to join the workshop. In particular the view of industry and practitioners among you is considered valuable for this Workshop.

For the prep call – this Wednesday – we would propose a timeslot in the late afternoon so that many people could attend – e.g. 6 pm. Please let me know if you have problems joining at that time. I would circulate a corresponding invite tomorrow – depending on your feedback.

 

Please let me know who is willing to participate!

 

Please feel free to reach out to me and/or Bruno and/or Emmanuel if you have any questions.

 

Kind regards

Alexander

 

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Alexander Haertel
LES Germany
Duesseldorf
+491772323341
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