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OPINION (COM(2023)0232 – C90147/2023 – 2023/0133(COD))

On the proposal for a regulation of the European Parliament and of the Council on Standard essential patents and amending Regulation (EU)2017/1001

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Committee on the Internal Market and Consumer Protection · Rapporteur: Dita Charanzová

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The Committee on the Internal Market and Consumer Protection gives its opinion on the proposed regulation on standard essential patents (SEPs), which aims to improve SEP licensing. It supports the objective but proposes amendments to widen the scope to all SEPs, present and future. The opinion asks that existing SEPs be registrable, that both SEP holders and implementers can request checks and determinations with a lower threshold for small and medium-sized enterprises (SMEs), and that the SEP database be accessible to all with upkeep costs borne by the EUIPO. It also proposes technical corrections and clarifications, including that FRAND value and essentiality determinations are separate from the standardisation process.

Committee position. The committee supports the objective of improving SEP licensing but proposes amendments to widen the scope to all SEPs, allow registration of existing SEPs, lower thresholds for checks, ensure database accessibility, and introduce technical clarifications.

Key points

  1. The scope of the regulation should cover all SEPs, present and future, so that transparency and reduced litigation benefits are fully realised.
  2. Existing SEPs should be registrable, and the current agreement should remain enforceable even if an existing SEP is not registered; Article 24 should be revised to remove penalties for non-registration.
  3. Both SEP holders and implementers should be able to request checks and determinations, with a lower threshold particularly for SME implementers.
  4. The SEP information database must be accessible to all, with upkeep costs falling to the EUIPO, though fees may apply for specialised checks and certain information where justified.
  5. The opinion introduces technical corrections and clarifications, including that FRAND value and essentiality mechanisms are separate from the standardisation process.
  6. The FRAND commitment should not cease on a change of SEP ownership, and the regulation should apply to patents in force in one or more Member States declared essential to a published standard.
  7. The regulation should also apply to standards published before its entry into force if an implementer or SEP holder notifies the competence centre.
  8. The competence centre should offer particular assistance to SMEs, microenterprises and start-ups, and establish training for evaluators and conciliators.
  9. SEP holders and implementers should both be able to request an expert opinion on aggregate royalty, and the competence centre should appoint a panel of conciliators.
  10. A FRAND determination should be a mandatory step before patent infringement proceedings or FRAND claims before an EU court, should not exceed 9 months, and its outcome should not be binding.
  11. Patent assertion entities should not benefit from exemptions for micro, small and medium enterprises under the regulation.
  12. SEP holders should offer more favourable FRAND terms to micro, small and medium-sized enterprises, and may offer discounts, interest-free instalments or royalty-free licensing for low sales volumes.

Who is affected

  • SEP holders: must register SEPs, provide information, and offer favourable terms to SMEs; non-registration limits claims for infringements.
  • Implementers: can request checks and determinations, provide information voluntarily, and benefit from lower thresholds if SMEs.
  • SMEs, microenterprises and start-ups: receive reduced fees, free training and support, and are excluded from essentiality check sampling.
  • Patent assertion entities: excluded from SME benefits and from exemptions under the regulation.
  • Competence centre (EUIPO): must set up and maintain the register and database, offer training, and administer procedures.

Figures and deadlines

  • 7 months from the opening of registration for a SEP to provide standard terms and conditions.
  • 4 months from the termination of alternative dispute resolution proceedings to disclose information.
  • 30 days from publication for stakeholders to submit comments on notifications.
  • 150 days following publication for requests on aggregate royalty for standards published before entry into force.
  • 6 months from appointment of conciliator for SEP holders to agree on joint notification.
  • 9 months maximum for FRAND determination procedure.
  • 15 days for responding party to notify the competence centre of its decision on FRAND determination.
  • 5 days from expiry of time-limit to provide commitment for notice of commitment.