25th August 2023 |
The Department of Enterprise, Trade and Employment is seeking views from stakeholders and interested parties on the proposal for a regulation of the European Parliament and of the Council on standard essential patents and amending Regulation (EU) 2017/1001.
The views of stakeholders and interested parties are a vital source of information and opinions, helping inform the development of a national position. Views from stakeholders and interested parties are requested no later than close of business on 6 October 2023.
Submissions should be marked ‘Proposal on SEP Regulation’ and emailed to email@example.com.
The European Commission’s proposal, impact assessment, regulatory scrutiny board opinion and the subsidiarity grid accompanying the proposal are available here: Proposal for a regulation on standard essential patents (europa.eu)
Standard essential patents (SEPs) are patents that protect technology that has been declared essential for the implementation of a technical standard adopted by a standard developing organisation (SDO). Such standards relate for instance to connectivity (for example, 5G, Wi-Fi, Bluetooth, NFC) or audio/video compression and decompression standards.
To make a product that is standard-compliant, an implementer is obliged to use the relevant ‘essential’ patents. The monopoly granted by such specific patents is balanced by SEP holders' commitment to license these patents on fair, reasonable and non-discriminatory (FRAND) terms, allowing access to market to implementers.
The European Commission has proposed a SEP licensing framework which aims to create a balanced system, setting a global benchmark for SEP transparency, reduction of conflicts and efficient negotiations. The proposed SEP licensing framework will provide additional transparency regarding SEP portfolios, aggregate royalty (when patents of several holders are involved) and allow for more efficient means for parties to agree on FRAND terms for their licences.
The proposal introduces measures on the following aspects: a SEP register, database, and essentiality checks; expert opinions on SEP aggregate royalty; FRAND determination by means of conciliation in lieu of costly litigation; SME support measures; and the establishment of a ‘Competence centre' at the European Union Intellectual Property Office (EUIPO).
Expected benefits of the proposal
The proposal aims to incentivise participation by European firms in the standard development process and the broad implementation of such standardised technologies, particularly in IoT industries. The proposed changes are intended to enhance transparency, efficiency, and predictability in SEP licensing and to provide a more structured framework for licensing SEPs and ensure fair and reasonable terms for all parties involved.
Publication of submissions and Freedom of Information
Your attention is drawn to the fact that information provided to the department may be disclosed in response to a request under the Freedom of Information Act 2014. Therefore, should you consider that any information you provide is commercially sensitive, please identify same, and specify the reason for its sensitivity. The department will consult with you regarding information identified by you as sensitive before making a decision on any Freedom of Information request. Any personal information, which you volunteer to this department, will be treated with the highest standards of security and confidentiality, strictly in accordance with the Data Protection Acts 1988-2018.
The department may also decide to place any submissions received by it on the department’s website. A decision on any such placement may occur without prior consultation with respondents to this process. Thus, it is in the interests of respondents to highlight, in their submissions, any commercially sensitive or confidential information at the time of submission.