The IP experts of the Latin America IP SME HD are constantly traveling around Europe meeting with EU SMEs like yours, at several business events. You already know that the main questions relate to IP protection and enforcement in Latin America. But did you also know that sometimes companies ask us about IP protection in the EU?
Even though our Helpdesk is mainly focused on delivering support regarding IP protection and enforcement in Latin America, there is no doubt that EU SMEs also need to be successful in Europe. Thus, they sometimes ask us first about IP protection in Europe.
Most of the time, what we do is try to answer some of the basic questions that they have about the EU Landscape and put them in contact with the European IP Helpdesk, which is a first-line intellectual property (IP) service providing free-of-charge support to help European SMEs.
If this is the case, and you are an EU SME willing to know more about IP protection in Europe before going on your Latin American adventure, then this article is for you. Let’s start!
European IP Helpdesk and Latin America IP SME Helpdesk collaboration with ENRICH LAC
First, Latin America and the European IP Helpdesk have both worked with ENRICH LAC to collaborate on a video on the Intellectual Property landscape in Europe.
The European Network of Research and Innovation Centers and Hubs in Latin America and the Caribbean (ENRICH in LAC) is a project funded by the European Union under the Horizon 2020 research and innovation program (2021-2023). Its aim is to promote and enhance collaboration between Latin America, the Caribbean, and Europe in the field of Science, Technology, and Innovation, focusing on global innovation landscapes such as healthcare, digital transformation, bioeconomy, renewable energy, and sustainable urbanization. The ENRICH in LAC Association is based in São Paulo, Brazil, and is EU and LAC through member-and partnerships, representation, and other means of involvement.
As a result of this collaboration, our colleague César E. Fernández summarized what the current situation with IP protection in the EU is, and what is yet to come in the EU Landscape for EU SMEs:
This video is part of ENRICH in LAC´s Learning Tool, a series of training videos created by ENRICH in LAC with five different modules, ranging from business and innovation ecosystems in Europe and Latin America, R&I tools for financing projects in Latin America and Europe, cooperation and internationalization practices and procedures, to the services ENRICH in LAC offers to members. Watch all of them to have a bigger and better understanding of the EU-LAC network for business, innovation, and research.”
In case you’d like to have a fast read of what we mention in this video, please stay with us. Hereby you can find all the information that we provide in the video by IP right:
The duration of the patent protection in Europe is 20 years from the filing date. This is not extendable, except for pharma and plant protection products (SPC)
No grace period
This is the period prior to the filing date of a patent application, usually ranging from 6 to 12 months, during which an inventor can disclose the invention without limitation with respect to the form or purpose of the disclosure and without this preventing the possibility of obtaining the patent.
This is not the case in Europe, that is why EU SMEs are advised not to disclose any information about the invention which may prevent them from the possibility of obtaining a future patent.
Supplementary protection certificates
Supplementary protection certificates aim to offset the loss of patent protection for pharmaceutical and plant protection products that occurs due to the compulsory lengthy testing and clinical trials these products require prior to obtaining regulatory marketing approval. An SPC can extend a patent right for a maximum of five years. A six-month additional extension is possible.
SPC protection is currently only available at a national level and is fragmented, which is burdensome, costly, and difficult to monitor.
Is there anything new?
1) A unitary SPC complementing the unitary patent.
So far there is no EU legislation providing for a unitary SPC complementing the unitary patent. Hence, the new SPC rules proposed are laid out in four proposals for a Regulation:
a) Two Regulations that introduce a centralised procedure for the grant of national SPCs, by recasting and repealing the existing EU regulations (One for medicinal products and the other for plant protection products).
b) Two completely new Regulations creating a new unitary SPC (with the same centralised examination procedure), one for medicinal products and one for plant protection products.
This makes a total of four regulations that rely on the same principles (the same SPC eligibility criteria) and on the same centralised examination procedure. Applicants will also be able to file a ‘combined application' with a view to the grant of both a unitary SPC and national SPC for additional Member States not covered by the unitary patent.
2) The Unitary Patent
Successfully launched on 1 June 2023, the new Unitary Patent system - the European patent with unitary effect and the Unified Patent Court- is the building block that supplements and strengthens the existing centralised European patent granting system.
It offers users of the patent system a cost-effective option for patent protection and dispute settlement across Europe and is based on the European patent granted by the EPO under the rules of the European Patent Convention (EPC).
There is no change in the pre-grant phase and the same high standards of quality search and examination apply. After a European patent is granted, the patent proprietor can request unitary effect, thereby getting a European patent with unitary effect (Unitary Patent) that provides uniform patent protection in initially 17 EU Member States: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Sweden. Access to the Unitary Patent remains open to all EU member states.
Unitary patent protection makes the existing European patent system simpler and less expensive for users.
B) Industrial Designs
The duration of the design’s protection is of 5 years renewable up to 25 years.
In Europe, unregistered designs benefit from the protection for unregistered designs, which is of 3 years from disclosure. This protection is not extendable, and can only be used against identical designs.
Is there anything new?
Yes! The Enhancement of the Industrial Designs EU system.
The revised rules presented by the Commission on 28 November 2022, are expected to make it cheaper, quicker, and more predictable to protect industrial designs across the EU. The Designs Directive and Community Design Regulation, originally created twenty years ago, are currently being revised.
- Simplify and streamline the procedure for the EU-wide registration of a design
- Harmonise procedures and ensure complementarity with national design systems
- Allow reproducing original designs for repair purposes of complex products
C) Trade marks
The duration of the protection of trade marks in Europe is of 10 years from the filing date.
Particularities of the EU trade mark system are the:
- relative grounds are not examined by the EUIPO, that is users need to be proactive in this aspect.
- coexistence agreements have no need to be approved at the National IP office.
D) Geographical Indications
Building on the success of the existing GI system for wine-spirit drinks and agricultural products, the European Commission (EC) has proposed to put a complementary protection system into place to enable producers to protect craft and industrial products associated with their region and their traditional know-how, with effects in Europe and beyond.
- Establish an EU-wide protection for geographical indications of craft and industrial productsto help producers protect and enforce the intellectual property rights of their products across the EU.
- Enable simple and cost-efficient registration of GIs for craft and industrial products by establishing a two-level application process. This would require producers to file their GI applications to designated Member States' authorities, who will then submit successful applications for further evaluation and approval to the European Union Intellectual Property Office (EUIPO).
- Allow full compatibility with international GI protection by enabling producers of registered craft and industrial GIs to protect their products in all countries that are signatories of the Geneva Act on Appellations of Origin and Geographical Indications under the World Intellectual Property Organisation (WIPO), to which the EU acceded in November 2019 and which covers craft and industrial GIs. At the same time, it will now be possible to protect corresponding GIs from third countries within the EU.
- Support the development of Europe's rural and other regions by providing incentives for producers, especially SMEs, to invest in new authentic products and create niche markets. The proposed Regulation will also help to retain unique skills that might otherwise disappear, particularly in Europe's rural and less developed regions.
- Publication date
- 20 September 2023
- European Innovation Council and SMEs Executive Agency