Context: The Brussels “eurocracy” has been wildly unsuccessful from an economic policy point of view. The United States and China have taken an unassailable lead in all key digital technologies. The collective market capitalization of all publicly traded EU companies is but a fraction of that of all publicly traded U.S. companies. Just like the complete idiocy that was the Lisbon Agenda (the EU seriously thought it could become the world’s most competitive knowledge-based economy by 2010), it appears that the von der Leyen II Commission’s vows to prioritize innovation and growth over regulation ring hollow, changing very little and achieving almost nothing. But the Brussels machinery is still well-oiled in the sense that it never stops to produce ever more papers and propose ever more regulation, enabling the institutions to keep themselves, each other and lobbyists busy.
What’s new: The purpose of this article is just to take a quick look at three new EU-level developments with an IP connection:
- The Directorate-General for Trade (DG TRADE) has released a Staff Working Document (SWD) on IP-related aspects of global trade. That is the part of the European Commission (EC) whose World Trade Organization (WTO) complaint over Chinese antisuit injunctions went nowhere (April 10, 2025 ip fray article).
- The European Telecommunication Standards Institute (ETSI) has publicly commented on the EC’s plans for the Single Market to the extent that those relate to standardization.
- A group of member states falling far short of a dual qualified majority to adopt legislative decisions in the EU Council keeps pushing for a revival of the EU SEP Regulation that is intended to be withdrawn (probably next month) (February 11, 2025 ip fray article).
Direct impact & wider ramifications: Presumably nothing that matters to the IP community will come out of any of those three EU initiatives, but some IP professionals may nevertheless want to know what’s going on. Also, it remains to be seen what the impact of a U.S.-EU trade war, which could begin on June 1 with tariffs of 50% on EU exports to the U.S., will be on IP, given that there could be de facto tariffs on IP licenses on both sides of the Atlantic. For example, President Trump believes he should protect his country’s movie industry that way. But the U.S. has a huge trade surplus with respect to IP licensing.
1. New trade policy paper
On Thursday, the EC’s DG TRADE released its biennial “Report on the Protection and Enforcement of Intellectual Property Rights (IPR) in Third Countries” (May 22, 2025 EC news item).
Counterfeiting is outside of ip fray‘s editorial focus.
With respect to patents, the report is puzzling in many ways. For example, it acknowledges at the outset that “the innovation gap between the EU and the United States (US) and China has widened in recent decades,” further noting that this is not for a lack of public spending in the EU, but “EU underspending is mostly attributable to the business sector, whose R&D expenditures account for about 1.3% of GDP, well below the level of 2.4% in the US and of 1.9% in China.” So far, so good. But why does the report then mischaracterize China as an infringer of EU IP?
These are the countries over whose IPR enforcement DG TRADE expresses the greatest concerns:
Priority 1: China
Priority 2: India, Türkiye
Priority 3: Argentina, Brazil, Ecuador, Indonesia, Nigeria and Thailand
Again, counterfeiting is a different topic. But as far as patent enforcement is concerned, ip fray observes that China, India and Brazil are jurisdictions in which patent (and particularly SEP) holders often gain decisive leverage that drives, or at least contributes rather significantly to, global settlements (April 18, 2025 ip fray article on Latin America; April 15, 2025 ip fray article on a settlement of an Indian patent dispute). There is always room for improvement, but that applies to the EU as well.
The EU objectively has more reasons to be concerned about its own problems than about jurisdictions that are, for now, on the right track. For example, recently published numbers show that the entire EU share of WiFi 7 SEPs is not just far below that of the U.S. and China, but even behind Japan and South Korea (May 14, 2025 ip fray article).
It appears that DG TRADE is struggling to accept its WTO defeat. The second EU complaint is mentioned in the paper.
The EU is blatantly hypocritical if it criticizes Chinese courts of extraterritorial overreach while EU-based courts do the same all the time, just that they force defendants, at the threat of patent injunctions, to take global licenses. The U.S., Latin American jurisdictions and India don’t do that. If the EU wants to address the problem, it has to finally take a symmetrical perspective and sit down with the UK (which has caused a significant part of the problem) as well as China to work out some kind of treaty under which no one will engage in extraterritorial overreach with respect to imposed patent licenses (whether those are imposed on right holders or on implementers).
2. ETSI comments on Single Market plans
Also on Thursday (May 22, 2025), ETSI published a four-page statement (PDF) on a communication by the EC to several other EU institutions about the Single Market (“our European home market in an uncertain world”).
What led ETSI to chime in (only one day after the EC released its paper) is that the EU’s new “Single Market Strategy . . . was delivered together with an Omnibus proposal addressing digitalisation and alignment of common specifications.” Basically, the message that ETSI is sending to Brussels is that it stands ready to engage with the EU institutions and make its contributions to a stronger European standardization system. ETSI wants to ensure that cellular standard-setting remains a global effort, which is presumably a warning against certain plans by the EC to reduce the influence of foreign innovators, which in the end would only weaken ETSI and Europe-based standards development. For example, ETSI notes the following:
To this point, 3GPP is widely considered a successful business case in European and global standardisation, as being globally driven, consensus-based and industry-led.
3. Minority favors revival of SEP Regulation
Earlier this month, a group of EU member states (lobbied primarily by automotive industry players) wrote a letter about an “Any Other Business” item for the EU Competitiveness Council that has meanwhile been held:
Four large EU member states (Germany, Italy, France and Spain) as well as three smallerones (Czechia, Latvia and Slovakia) urged the EC to “withdraw the withdrawal notice.” But it is not clear what exactly they want, given that they want the EC to “present a further developed proposal that constructively addresses the concerns expressed by the Member States so far.” That would be a huge task, given that hundreds of questions were never answered by the EC’s Directorate-General for the Internal Market (DG GROW) in writing.
While that group of member states would be in a position to block a legislative decision in the EU Council, it falls far short of the dual qualified majority that could make a decision. And while some of those countries may be largely in favor of the SEP Regulation that was proposed two years ago, some others may actually have different ideas. In that case, the group is even further from a majority that could adopt a legislative proposal (as opposed to just agreeing on a non-legislative document such as that letter to the EC). A few months ago, 10 member states supported the withdrawal and 9 didn’t seem to care (February 28, 2025 ip fray article).
We are not aware of any indication that a majority in favor of the SEP Regulation was in place on Thursday. The Competitiveness Council is just one configuration of the Council, “configuration” referring to the types of government ministers (or representatives right below the level of a minister, such as state secretaries or deputy ministers) that each of the 27 member states dispatches to such a meeting.
Therefore, the EC was actually right when it announced its intent to withdraw the proposal for the reason that it was stuck in the Council. That is still the case. And the EU SEP Regulation is antithetical to the notion of less regulation and more innovation.
One should probably not take the “withdraw the withdrawal notice” part literally, given that even those seven member states may have divergent ideas as to what that should practically mean. It is fair, however, to interpret it as a call on the EC to continue to monitor the SEP space and to develop ideas for how the SEP licensing process could be improved. The EC as a whole, however, has more pressing problems to deal with. If it does want to take action with respect to SEPs, it should (as the first section of this article suggests) talk to the UK and China about how to do away with SEP rulings of extraterritorial effect.