Mr. Vice-President,

On behalf of the Institute for Digital Fundamental Rights, I would like to begin by expressing my satisfaction at your nomination for the position of Vice-President in charge of Industrial Strategy and Prosperity. Your knowledge of the functioning of the European institutions and of international relations will be invaluable assets in helping to draw up a solid European industrial policy and in combating the risks of Europe’s economy falling behind.

As you know, Mr. Mario Draghi’s report highlights and identifies these risks, while at the same time offering ideas on how to tackle and overcome them. The suggestions contained in this report are based on an analysis of the European Union’s achievements in support of a competitive and sovereign European industrial policy, while highlighting the gaps and challenges to overcome. Among the examples cited as representing a major step forward, the “Draghi Report” identifies in particular the establishment of the European Patent with Unitary Effect (Unitary Patent) and the Unified Patent Court (UPC).

As a Member of the European Parliament from 2004 to 2019, I had the privilege of following and participating in the discussions that led to the adoption of the texts at the origin of this reform, which became operational last year and whose penetration rate among SMEs demonstrates its attractiveness. Our concern as MEPs was to ensure that Europe’s most innovative companies could benefit from a high-quality industrial property certificate, issued simply and centrally and protected effectively and uniformly across the widest possible area of the European Union. After more than half a century of unsuccessful attempts, this achievement, which was in keeping with the logic of “better lawmaking”, also met the needs of European industrial players through its simplicity, accessibility and the high level of legal certainty guaranteed by the role of the UPC. Access to a simple instrument for the promotion and protection of innovative companies already seemed a necessary prerequisite for the future implementation of a European industrial policy for which you will soon be responsible.

The preservation of this acquis is currently at the centre of Member States’ concerns as part of their discussions within the Council’s Intellectual Property Working Group on the ‘Patent Package’ presented by the European Commission in April 2023. Over and above the complexity of the technical issues that have led them to ask the Commission for clarification on the general structure of the proposals presented, there is one issue that transcends all the discussions: are these proposals inspired by the approach followed in the context of the reform of the Unitary Patent and, like the latter, do they offer all the guarantees of quality, simplicity and legal certainty? In view of the discussions currently taking place within the working group, this is questionable. Of the three dossiers making up the package, two – on the Supplementary Protection Certificate (SPC) and the Standard Essential Patents (SEPs) – have come up against a number of questions, including the following. More than 250 technical questions have been sent to the European Commission by the Member States on the SEPs. As for the SPC, discussions are focused on the optimal way to avoid having a negative impact on the progress of the unitary patent reform and to preserve, in particular, the central role of the UPC in guaranteeing the legal certainty necessary for the proper functioning of the internal market and for fair competition between the companies operating within it.

As you are no doubt aware, I have always been keen to defend intellectual property in all forms. I am convinced that as part of the European industrial strategy that you are going to have to implement, intellectual property is and will remain a central tool in the initiatives that you intend to take. Past advances, such as the reform of the Unitary Patent, which today enable companies to benefit from appropriate tools to face up to global competition, must be preserved and strengthened. As for current and future initiatives, they should be assessed in the light of the principles of “better lawmaking”, which require a clear and non-dogmatic identification of the problems to be solved in order to identify the best responses.

As the hearings of the European Commissioners draw nearer, I remain entirely at your disposal to discuss intellectual property issues in general and current initiatives in particular with your teams. We could, of course, arrange a meeting with my experts in the field in due course, if your schedule allows.

I would like to thank you in advance for the consideration you will give to my letter.

Yours sincerely,

Jean-Marie Cavada
Chairman iDFrights