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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

INTA-PA-753729

Committee on International Trade · Rapporteur: Danuta Maria Hübner

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The Committee on International Trade's draft opinion proposes amendments to the Commission's proposed regulation on standard essential patents (SEPs). It limits the regulation to SEPs in force in one or more member states and to future standards, and deletes the aggregate royalty mechanism and the mandatory FRAND determination before litigation. It removes rules that suspend unregistered SEPs from the register and bar royalties or damages, and deletes the annual update of essentiality rates and the possibility for implementers to propose up to 100 SEPs for checks. It requires the FRAND determination to run in parallel with court proceedings on validity and infringement, allows either party to request a provisional injunction, and provides that the procedure continues only if both parties agree to participate. It adds support for small and medium-sized enterprises (SMEs), including free training, reduced fees, exclusion from sampling, and a new article on safe harbours and alternative dispute resolution with the World Intellectual Property Organization (WIPO).

Committee position. The Committee on International Trade proposes amendments to limit the regulation to future standards and European patents, delete the aggregate royalty mechanism and the mandatory FRAND determination before litigation, and add support for SMEs. It calls on the Committee on Legal Affairs to take these into account.

Key points

  1. The regulation should apply only to patents in force in one or more member states and to standards published after its entry into force.
  2. The aggregate royalty mechanism is deleted from the regulation, including provisions on notification, revision, expert opinions and related fees.
  3. The mandatory FRAND determination before court proceedings is deleted, and validity and infringement proceedings should run in parallel with the FRAND determination.
  4. A SEP holder that fails to register its SEPs should not lose the right to collect royalties or claim damages, and suspension from the register is deleted.
  5. The FRAND determination should continue only if both parties agree to participate, and one-sided continuation is deleted.
  6. Either party may request a provisional injunction of any nature, not only financial, and the FRAND determination should not suspend time limits for court claims.
  7. The annual update of essentiality rates is deleted, and implementers may no longer propose up to 100 SEPs annually for essentiality checks.
  8. SEPs of micro and small enterprises are excluded from sampling for essentiality checks, and SMEs benefit from reduced fees and free support.
  9. A new article provides for safe harbours and alternative dispute resolution for SMEs, including agreements with the World Intellectual Property Organization (WIPO).
  10. The Commission should identify use cases with no significant difficulties in licensing by 18 months from entry into force, and the regulation should apply 36 months after entry into force.

Who is affected

  • SEP holders: face fewer registration and licensing obligations, and are protected from losing royalties or damages for late registration.
  • Implementers: may request provisional injunctions, but lose the right to propose SEPs for essentiality checks.
  • SMEs: benefit from free training, reduced fees, exclusion from sampling, and new safe harbour options.
  • National courts: may issue provisional injunctions during FRAND determinations and are not barred from hearing validity and infringement cases in parallel.
  • The European Union Intellectual Property Office (EUIPO): takes on tasks under the regulation, including the competence centre and SME support.

Figures and deadlines

  • 18 months from entry into force: deadline for the Commission to establish a list of use cases with no significant difficulties.
  • 36 months after entry into force: date from which the regulation applies.
  • 7 months from the opening of registration: deadline for SEP holders to provide standard terms and conditions.
  • 6 months from publication of a final decision on essentiality: deadline for SEP holders to inform the competence centre.
  • 15 days from receipt of notification: deadline for the responding party to reply to a FRAND determination request.
  • 45 days before the end of the time limit: deadline for the conciliator to submit a reasoned proposal.
  • 10 days after request: deadline for payment of amounts requested, with a further 5 days to pay.
  • 24 months from entry into force: deadline for the Commission to determine the methodology for essentiality checks.