On Wednesday 26 June, the Member States’ permanent representatives to the EU (‘Coreper’) adopted the EU Council’s negotiating mandate for the regulation establishing a European compulsory licence. This regulation should enable the European Commission to grant compulsory licences at European level for products needed in certain crisis situations, which could oblige a patent holder to transfer the rights. Member States already have this option at national level, but the EU considers that a Europe-wide licence is appropriate to cover products with cross-border distribution.
In its general approach, the EU Council is moving slightly away from the position of the European Parliament which was adopted in March (see EUROPE 13349/10). For example, the Member States believe that patent holders cannot be obliged to divulge certain industrial secrets, whereas the European Parliament wishes to introduce this possibility.
Furthermore, the EU27 believe that the European compulsory licence should only be usable when one of three European instruments is activated: the Internal Market Emergency and Resilience Act (‘IMERA’), the regulation on serious cross-border threats or the regulation on medical countermeasures necessary in the event of a crisis. The European Commission mentioned five instruments in its proposal.
The EU Council agrees with Parliament on one of its amendments to the text: both have removed the ceiling on remuneration for patent holders who are obliged to assign their patents under the compulsory licence. (Original version in French by Léa Marchal)