Understanding Europe and its Intellectual Property Landscape: A Basic Guide

Understanding Europe and its Intellectual Property Landscape: A Basic Guide

Europe’s identity is complex and multifaceted. This complexity is evident when discussing countries like Türkiye (formerly “Turkey”) and Tunisia in relation to Europe. Geologically, Türkiye is part of Europe and has a rich history intertwined with the continent. The Ottoman Empire extended deep into the European peninsula, until 100 years ago, and it shaped European history. She was the enemy of some powers in Europe and an ally of others. Türkiye is a member of the European Council. Despite all that, opinions vary on whether or not Türkiye is ‘European.’ Tunisia, on the other hand, is also geographically close to Europe and with historical ties, especially with France and Italy, but it is distinctly African, and not considered part of Europe. Countries like Russia, Belarus, Ukraine, and Georgia are also located in Europe, but they are not members of most European organisations.

The European Union

The European Union (“EU”) is a significant entity in Europe, but it doesn’t include all European countries. Notable exclusions are Switzerland, Albania, Macedonia, Montenegro, and Serbia, as well as Türkiye and Tunisia. The EU has its own legal systems, like the Court of Justice of the EU (“CJEU”, formerly “ECJ”) and the Unified Patent Court (“UPC”), which applies to EU member states participating in the UPC system when it comes to litigation and to some issues with European Patent (“EP”) applications when it comes to questions such as Arrow Declaratory Reliefs.

The EU’s intellectual property (“IP”) is managed by the EUIPO (formerly “OHIM”), responsible for EU trademarks and designs. However, EU patents, known as Unitary Patents (“UP”s), are outside its purview. These UPs are available only in UPC-participating EU member states and they are issued by the European Patent Office (“EPO”), which is not an EU organization. The UPC is set up and run according to the UPC Agreement (“UPCA”) and the corresponding Rules of Procedure (“RoP”). Most practitioners do not know that the UPC has its own Court of Appeal (“UPC CoA”), and not only decisions of the 1st UPC instance are subject to it, but also decisions of the European Patent Office (“EPO”) in UP matters are subject to the UPC CoA and not to the EPO Board of Appeal (“BoA”).

The European Patent Convention (EPC) includes various countries, European and non-European, like Türkiye. Tunisia, while not a member of the EU or EPC, has an agreement with the EPO that allows EPs to be effective there. The EPO, known for its thorough prior art searches and for its predictable patent court, the BoA, issues EPs under the EPC laws, which then require validation in member states. EPs are different from UPs!

Other European Organisations that are often confused

The European Council is distinct from the Council of Europe (“CoE”), which is an organization focused on promoting human rights, democracy, and the rule of law in Europe, and also distinct from the Council of the European Union, which is an EU institution responsible for coordinating policies and adopting legislation in conjunction with the European Parliament. These institutions are distinct in their functions and roles within European governance, and their similar names can lead to confusion. They have nothing to do with Intellectual Property as such, but you should know that they exist and conclude that Europe is not a linear event.

The European Council does not have an acronym, and the Council of the European Union is abbreviated as “the Council”, sometimes also as the “Council of Ministers.” It does not have a standard acronym like “EC” because this could be confused with the European Commission or the European Council.

The acronym “EMU” stands for the European Economic and Monetary Union. “EMU” is a term that represents a stage of economic integration of the EU. It comprises the “Eurozone” formed by the countries that have adopted the euro as their currency. Not all EU member states are part of the eurozone. The EMU further comprises the European Central Bank (“ECB”), which governs the monetary policy covering the eurozone countries.

Conclusion

This overview simplifies the complex web of European IP, setting the stage for further discussion on the UPC and UP systems, which are intricate but essential to understand for anyone involved in European IP. In addition to the UPC and the UP systems, there are the national patent and utility model systems, that complement the European system.

Understanding these acronyms (BoA, EPO, CJEU/ECJ, CoE/EC, ECB, EMU, EP, EPO, EPUE, EPC, EU, EUIPO/OHIM, IP, UP, UPC, UPC CoA, and others) and their meanings is crucial for clarity in Europe’s IP landscape.

This knowledge explains, for example, why many Turkish European Patent Attorneys or UK Chartered Patent Agents can work on EPs at the EPO and litigate UPs at the UPC, but not in national courts of EU member states, while all national patent agents can do so across the EU, but not across the whole of Europe. And not all European Patent Attorneys can represent and plead before the UPC.

 

Martin “European” Schweiger

 

this article was first published here: https://ipbusinessacademy.org/understanding-europe-and-its-intellectual-property-landscape-a-basic-guide







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