26. Future Trends

This chapter offers an outlook to the future of IP at the European level. The EU and its legal instruments primarily approach IP from a utilitarian free market perspective and that applies also to the way they look at the future. The chapter focuses primarily on that angle when it looks at how the European IP system could and should function in the future and which direction it is taking. In a sense it offers an opportunity for reflection and attempts to enhance the reader's insight in and understanding of IP by wrapping the critical analysis of its technical rules up in a more theoretical analysis.

23. Trade Secrets

This chapter deals with the legal protection of trade secrets. Traditionally, trade secret protection was left to the national laws of Member States. These national regimes are rooted firmly in existing legal rules in the areas of unfair competition, tort, or breach of confidence. And there is also the “Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use, and disclosure”. The Directive seeks to impose on Member States a minimal form of harmonization and uniformity. It does not impose a (Community) right in relation to a trade secret, but it works with a common basic definition of a trade secret, the principle that there needs to be redress for the unlawful acquisition, use, or disclosure of a trade secret, and a catalogue of measures and remedies.

22. Data Protection and Data Exclusivity

This chapter examines the law on data protection and data exclusivity. It focuses on the new GDPR Regulation. It covers rules on lawful processing of personal data, on the security of the processing, on the transparency of the processing, and on promoting compliance. It also discusses the rights of the data subject, the transfer of personal data to third countries, and the period of data exclusivity granted to the pharmaceutical sector independent of any form of patent protection.

16. Trade Marks and the Free Movement Aspects of EU Law

This chapter examines the interaction between trade mark law and the principles of free movement of goods in the EU. It discusses the concepts of essential function and specific subject matter which the CJEU uses to distinguish between what amounts to pro-competitive use of the trade mark, which the Treaty encourages, and anti-competitive abuse of the trade mark rights, which the Treaty prohibits. The essential function looks at this from a theoretical perspective, whilst the specific subject matter translates this in more practical guidelines. The chapter then turns cases and heated debates arising from parallel importation, which essentially focus on the relabelling and repackaging of parallel-traded goods.

12. The Rights Conferred by Copyright and Related Rights

This chapter considers the nature and scope of the rights conferred by copyright and related rights under European law. The starting point for this discussion are domestic conceptions of copyright and related rights as conferring a range of economic and moral rights on authors and related rights holders to authorize or prohibit certain acts in relation to the protected work or subject matter within the territory of the protecting state, subject to the availability of a limitation or exception. With this as background, the chapter considers the precise nature and scope of the rights conferred by copyright and related rights as a matter of European law, and such aspects of those rights as remain untouched by European law.

11. The Subsistence and Ownership of Copyright and Related Rights

This chapter considers the three requirements for copyright and related rights to subsist—the existence of a subject matter of protectable type that is sufficiently connected to the territory of the protecting state and that satisfies any applicable formalities—the combination of international and EU legal sources by which they have been harmonized for EU Member States, and the beneficiaries of the resulting copyright and related rights protection.

9. Plant Variety Rights and Supplementary Protection Certificates

This chapter completes the discussion of European patent and related rights by examining the European systems governing the grant of plant variety rights (PVRs) and supplementary protection certificates (SPCs) respectively. Plant variety rights are sui generis rights conferred on application to breeders of certain strains of plant material. In Europe there exist national and Community PVR systems, all of which confer exclusive rights to prevent the commercial exploitation of previously non-commercialized varieties for a limited period within the territory of the relevant state and EU respectively. The SPC system governs the grant of domestic rights conferring follow-on protection for patented medicinal and plant protection products the commercialization of which has been delayed by the need to satisfy regulatory approval requirements.

8. Patent Protection and Exploitation

Once a European patent has been granted the nature and scope of the protection it confers must be determined. In considering such protection this chapter focuses on four issues of central importance to that end. The first is the effects of a patent, namely, the territories in and term for which it is valid. The second is the object of protection, namely, the subject matter that the public is excluded from using during the term of its protection. The third is the nature of protection, namely, the uses of the subject matter from which the public is excluded. And the fourth is the limitations to protection, namely, the uses of an invention that the law permits notwithstanding its protection by patent grant.

7. Secondary Patentability Requirements

This chapter considers the secondary patentability requirements of the European Patent Convention (EPC). It assumes the existence of a subject matter for which a European patent may validly be granted, and focuses on the legal tests for determining its novelty, inventive step, and susceptibility of industrial application in accordance with Articles 54 to 57 EPC and the corresponding provisions of the EU Biotech Directive for biotechnological inventions.

20. Introduction to Rights in Data and Information

This chapter provides an overview of rights in data and information. It discusses the impetus for the creation of ‘rights’ in information, which is found in the financial investment in the gathering and the organization of the data and information. This area is entirely about the protection of investment against the ease of copying. The nature of what emerges is therefore also radically different from the traditional IP rights. Traditional IP rights such as patents, trade marks, and copyright are exclusionary rights, but they are transferable in nature. One can assign these rights. But in the area of ‘rights’ in information, non-transferability is the norm.