11. May 2021 | Position
The German chemical-pharmaceutical industry ranks among the most innovative sectors of the economy. In 2019 alone, the industry invested some 13 billion euros in research and development. Researching companies of all sizes need effective and legally secure protection at favourable cost to refinance their investments.
Therefore, patents form the basis for the innovation capability and competitiveness of the entire industry. The following applies: No innovation without investment and no investment without effective patent protection.
Patent protection for Covid-19 vaccines
South Africa and India have applied to the World Trade Organization (WTO) to lift temporarily the protection of intellectual property rights for Covid-19 vaccines and therapeutics. The USA, too, has advocated such a step – even though it would neither speed up the worldwide vaccine supplies nor accelerate the fight against the pandemic.
At present, limited production capacities are the debilitating factor for faster supplies. Production capacities cannot be built overnight at any random site: It takes know-how, expert staff, established supply chains and high-technology components for local serum production. Currently, this combination exists only to a limited extent.
Vaccine manufacturers are taking part in the WHO programme “Covid-19 Vaccines Global Access” (COVAX). In cooperation with contract manufacturers and through licensing to other companies, they make sure that global production volumes are expanded.
Federal government wants to amend injunctive relief
The German federal government is planning to fundamentally amend the injunctive relief (Unterlassungsanspruch) in patent law. This is the wrong signal, because injunctive relief is the decisive instrument for enforcing patents in Germany. The intended softening of section 139 of the patent act would cause considerable legal uncertainty and a significant loss of efficiency in law enforcement. This would also put at risk Germany as a place of jurisdiction, which is very well established in patent litigation, because patent holders would be able to assert their rights before the courts in other countries. Should injunctive relief be amended at all, this would have to take the form of a narrow exception rule –oriented to the generally accepted hardship provision in the jurisdiction of the Federal Court of Justice (BGH).
Strengthen patent protection – instead of softening it
Supplementary protection certificates (SPCs) are a cornerstone for the protection of innovations in the pharmaceutical and plant protection industries. They extend patent protection to make up for long approval procedures. The creation of an SPC with uniform effect throughout the EU and a uniform granting procedure would have many advantages: This would eliminate existing legal uncertainties and reduce bureaucracy as well as the costs and resources for applying for SPCs in the various Member States. Moreover, a "single SPC" would ensure a consistent interpretation of the provisions
THE VCI IS CALLING FOR THE FOLLOWING
- No waiver of patent protection for Covid-19 vaccines
A waiver of patent protection would be fatal for the future readiness to make investments and would destroy the economic basis of innovative businesses.
- Maintain injunctive relief in German patent law without any changes
For preventing disproportionate consequences of injunctive relief, there is no need to amend section 139 of the patent act. Should there be an amendment at all, it would have to take the form of a narrow exception rule.
- Create a “single SPC”
The European legal framework for the protection of intellectual property should quickly be complemented by a supplementary protection certificate with a uniform EU-wide effect and a uniform granting procedure.
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