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DRAFT 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

IMCO-PA-753649

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

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The Internal Market and Consumer Protection Committee's draft opinion supports the proposed regulation on standard essential patents (SEPs) but asks the Legal Affairs Committee to amend it. It wants the rules to cover all SEPs, present and future, and to drop the exclusion of certain use cases. It proposes changes to essentiality checks and FRAND (fair, reasonable and non-discriminatory) determinations, free access to the SEP database, and a mandatory conciliation before litigation. It also makes technical corrections and clarifications.

Committee position. The committee supports the proposal's objective but proposes amendments to extend the scope to all SEPs, improve essentiality and FRAND processes, ensure free database access, and introduce a mandatory conciliation before litigation.

Key points

  1. The committee supports the proposal's aim to improve SEP licensing, which it says fosters innovation, the digital transition and Europe's competitiveness.
  2. It asks that the regulation cover all SEPs, present and future, so that transparency and reduced litigation apply to all of them.
  3. Existing SEPs should be registrable, and agreements should stay enforceable even if a SEP is not registered; Article 24 should be revised to remove penalties for non-registration.
  4. It wants better checks on whether a patent is essential and on FRAND values, revising the limit of one random check per category and letting both SEP holders and implementers request checks with a lower threshold, especially for small and medium-sized enterprise (SME) implementers.
  5. The SEP information database should be free to access, with the European Union Intellectual Property Office (EUIPO) bearing upkeep costs; fees may apply only for specialised checks.
  6. It proposes technical corrections and clarifications, including that FRAND and essentiality mechanisms are separate from the standardisation process.
  7. It deletes the exclusion of certain use cases from the regulation, so that aggregate royalty determination and compulsory FRAND determination apply to all standards.
  8. It removes the limit of one essentiality check per patent family and allows checks on more than one SEP from a family.
  9. It makes FRAND determination a mandatory conciliation step before litigation, not exceeding 9 months and non-binding, and removes the requirement to commit to comply with its outcome.
  10. It allows pre-existing standards to be notified voluntarily and sets deadlines for aggregate royalty requests for such standards.
  11. It deletes Article 66, which opened registration for existing standards, and adjusts delegated acts accordingly.
  12. It adds that benefits for micro, small and medium-sized enterprises may be withheld or withdrawn in cases of circumvention or misuse.

Who is affected

  • SEP holders: must provide information to the competence centre and may request checks and determinations.
  • Implementers: may request checks and determinations, with a lower threshold for SMEs, and may notify pre-existing standards.
  • SMEs: benefit from free database access and lower thresholds, but benefits can be withdrawn for misuse.
  • EUIPO: administers the register and database, conducts annual checks, and bears database upkeep costs.
  • Standard development organisations: excluded from discussions on patent validity and license valuation.

Figures and deadlines

  • 9 months: maximum duration of the mandatory conciliation procedure before litigation.
  • 100: maximum number of registered SEPs that SEP holders or implementers may designate annually for essentiality checks.
  • 7 months: deadline for SEP holders to provide standard terms and conditions from the opening of registration.
  • 30 days: period for stakeholders to comment on notifications or express interest in participating.
  • 120 days: deadline for requesting a conciliator for aggregate royalty for pre-existing standards.
  • 150 days: deadline for SEP holders to request an expert opinion on aggregate royalty.
  • 5 SEP holders or 3 implementers or 5 SMEs: thresholds for appointing a panel of conciliators.
  • 15 days: deadline for the responding party to notify the competence centre of its decision on FRAND determination.