Scope

The initiative, once adopted, will cover all patents registered in the EU – both national and Unitary patents. In addition, patent applications, utility models and supplementary protection certificate (SPCs) will also be covered.

Relevance

The Commission made the initiative in the aftermaths from the COVID-19 pandemic, where lack of production capacity to produce COVID-19 vaccines was a major bottleneck for governments when tackling the virus. Patent protection of the vaccine technology also contributed to a limited supply of vaccines. Since patent law largely remains national in the EU, granted patents constitute trade barriers in the internal market. Furthermore, a national compulsory license also only has national effects, which in turn highlights patents as trade barriers. Thus, the initiative, once adopted, will equip the Commission with the powers to issue compulsory licenses effective in all EU member states through a single application – and thereby removing the trade barriers to a certain extent. Although the legal act likely will not be incorporated into the EEA agreement once adopted, the initiative is a major stepping stone for the Union when combatting epidemics and pandemics affecting EU member states and the internal market.

Key takeaways

The proposal seeks to combat the geographical restrictions of national patent law, by granting the Commission the power to issue EU-wide compulsory licenses during an EU emergency. This means that third parties can obtain a license to use a patented invention without consent from the patent owner, when certain conditions are fulfilled. The license will be effective in all EU member states, which means that a third party does not have to apply for a compulsory license in every single member state where the invention is patented. The scope is limited to EU emergencies, such as a pandemic.