The European Semiconductor Industry Association (ESIA) is the organization representing the European semiconductor industry in Brussels. Semiconductor products are the key enabler for improved energy consumption and performance across a wide range, of everyday technology applications in society. These applications in the field of industrial operations, consumer electronics, healthcare, security and energy devices have contributed to improved energy efficiency for positive societal change.

Intellectual Property

Introduction

The semiconductor industry is one of the most R&D intensive industries. Between 15 and 20% of sales is spend on research and development. Most modern semiconductor products are complex devices which require a series of complicated steps to manufacture. Innovations take place over a large range of technologies, being it materials, electrical properties, electronic circuitry, manufacturing or applications. The semiconductor industry is global and highly competitive. In such an environment Intellectual Property Rights (IPR) are essential to protect innovations and to ascertain that newly developed technology can be kept proprietary and, if desired, be exchanged against an appropriate compensation.  

Accordingly, it is essential for the semiconductor industry that procedures for the grant and enforcement of patents are of good quality, efficient and predictive. ESIA and WSC promote the harmonization of procedures and patentability criteria to achieve this goal and emphasize the need for patent offices to work together to increase the quality of the patent grant procedures.

Patent system in Europe

In Europe, the patent system is fragmented and expensive. The costs for obtaining and maintaining patent coverage in a significant part of Europe are much higher than for economies like the USA or China. While the EPO provides for a single, high quality, grant procedure, patent enforcement is a national matter with different procedures and requirement in each country. Effective patent enforcement in multiple countries in Europe is costly and burdensome and may lead to different outcomes in different countries. Despite that in Europe important innovation in semiconductor R&D takes place, the fragmented, expensive and burdensome patent system has as a consequence that innovations made in Europe are often not well protected there. Products using innovations originating from Europe can be put on the market in large parts of Europe without compensation to the innovative company or research institute. ESIA and its members believe that this harms the position of Europe as a location for innovation as well as the value of European companies[1].

ESIA is therefore strongly in favour of urgently establishing and implementing Unitary Patent and Unitary Patent Court, provided these are efficient and cost effective.  ESIA feels that the procedural costs for obtaining a patent via the EPO are too high and should become more in line with, for example, the USA.

 

Trademarks

Patent are not the only IP rights of concern to the semiconductor industry. Trademarks define the origin of a product and form the legal basis for fighting counterfeit products.  ESIA supports efforts to stimulate that registered trademarks provide protection not only for literal use but also for similar use in the same field.

 

Counterfeits

Counterfeiting is often linked with trademark infringement. It not only erodes the economic basis of the companies that have invested in new products but also are not subject to the same quality requirements, leading to substandard products in the supply chain of our customers.  ESIA believes that effective and efficient procedures to stop counterfeit products in Europe are important, but at least as important is to make arrangements with the authorities in the countries that are the source of counterfeit products to stop the manufacture and sale.

 

Trade Secrets

As a very knowledge intensive industry, only a small part of the technology developed is suitable to be protected by patents. Sufficient protection of trade secrets must be possible. In Europe trade secrets are governed at a national level, mainly in the area of unfair competition. ESIA feels that a uniform approach is highly desirable in which trade secrets are treated as a form of intellectual property.

For a better protection of trade secrets in Europe

Companies develop confidential information that provides a competitive advantage. This information includes manufacturing techniques, chemical formulae, product design, technical data, as well as   customer lists, business leads, marketing strategies, pricing schedules, and sales techniques.

In the present Information Age documents can be copied and send around at virtually no effort and cost. This increases the difficulty that firms encounter in maintaining the confidentiality of any valuable information. In our increasingly global, connected world, protecting trade secrets is more and more challenging. As the physical limitations to distribution of information have disappeared, it is vital that  strong legal tools become available to EU companies to achieve and maintain competitive advantage through investment in innovation.

With the increased reliance upon technological advances and innovation, the theft of know-how, or trade secrets, is presently damaging many industries, among which the semiconductor industry. European companies are confronted with:

• ·         The taking of valuable proprietary information, which invariably leads to harm to their business, innovation strategy and R&D efforts. 

• ·         The marketing and sale of products made after theft of know-how, which often leads to products that are tainted and of inferior quality and might, in some cases, present a danger to the public health and environment. 

• ·         Products created as a result of such thefts, which compete unfairly with the original product because they do not bear the burden of the costs of innovative efforts.
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Infringing products that are manufactured as a result of theft are only able to compete with the genuine product because they incorporate the stolen know-how.  Without such know-how, the infringing manufacturer would either not be able to produce his product or would not be able to produce a product that offers the same characteristics or properties as the genuine article.

The patchwork of different approaches within the EU’s internal market leads to a lack of legitimate protection of such information and is a hindrance to innovation.  ESIA’s Companies investment in R&D to innovate can be justified only if reasonable returns can be secured for it through effective and proportionate protection of trade secret and other forms of intellectual property rights.  In addition, the lack of uniform and effective trade secret protection in Europe undermines EU demands to its trading partners to improve protection of European trade secrets as a form of intellectual property.