Standard essential patents regulation [EU Legislation in Progress]

Written by Tambiama Madiega (1st edition).

On 27 April 2023, the European Commission published its proposal for a regulation on standard essential patents (SEPs). SEPs are patents that protect technology that has been declared essential in a technical standard or specification developed by a standard development organisation (SDO).

The proposed SEPs regulation aims to facilitate SEPs licensing by increasing transparency about SEPs, reducing information asymmetries between SEPs holders and SEPs implementers and facilitating the agreement on fair, reasonable and non-discriminatory (FRAND) licences. The Commission is proposing to set up a competence centre at the EU Intellectual Property Office (EUIPO), tasked with administering a SEPs registry and database. SEPs holders would have to register their SEPs with the EUIPO, which would carry out essentiality checks and set FRAND criteria.

While stakeholders and academics are generally very supportive of the goal of enhancing transparency, major SEP holders and other interested parties oppose the proposal. In her draft report published in October 2023, Marion Walsmann (EPP, Germany) – rapporteur for the file appointed by the European Parliament’s Committee on Legal Affairs – proposes a range of amendments to provide more legal clarity and bridge the gap between the interests of SEPs holders and implementers.

Versions

• November 2023: Standard essential patents (1st edition)