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The European Commission consults on standards and patents

On the 14 October 2014, the European Commission began a consultation to gather views and information on the interplay between standardisation and intellectual property rights, such as patents.

November 2014

Standardisation is the voluntary process by which technical specifications are developed in various European and international standards organisations and other bodies, based on consensus among interested parties to a particular technology. Many of these standards concern essential technologies protected by patents. Hence, authorities and those involved in standardisation have developed approaches to ensure licensing of these standard essential patents (SEPs).

To assess how these are working, the Commission's consultation provides companies of all sizes, organisations, public authorities, citizens and any other interested stakeholders with the opportunity to give their views on:

  • the performance of the current framework governing standardisation involving patents; and
  • how that framework should evolve to ensure that standardisation adapts to a changing economic and technological environment.

speech bubble and commentsThe Commission is particularly keen to hear from those having direct experience of standardisation involving intellectual property rights, as well those having direct experience of: patent transfers; patent pools and other types of patent market intermediation; and patent dispute resolution.

In particular, the consultation seeks feedback on eight key issues concerning standardisation:

  1. Other than the telecommunications and consumer electronics industries, which other fields of standardisation comprise patent-protected technologies or are likely to do so in the future?
  2. Which elements of the rules and practices govern standardisation rules and practices involving patents are working well and should be kept and / or expanded? Which elements on the other hand can be improved?
  3. How can patent transparency in standardisation be maintained / increased? What specific changes to the patent declaration systems of standard setting organisations would improve transparency regarding standard essential patents at a reasonable cost?
  4. What problems arise due to transfers of SEPs? What can be done to prevent such transfers undermining the effectiveness of the rules and practices that govern standardisation involving patents?
  5. Where and how can patent pools play a positive role in ensuring transparency and an efficient licensing of patents on technologies comprised in standards? What can public authorities and standard setting organisations do to facilitate this role?
  6. What principles and methods are useful in order to apply "fair", "reasonable" and "non-discriminatory" (FRAND) terms in practice?
  7. What are the causes and consequences of SEP disputes? What dispute resolution mechanisms could be used to resolve these efficiently?
  8. How can holders of SEPs effectively protect themselves against implementers who refuse to pay royalties or unreasonably delay such payment? How can it be ensured that injunctions based on SEPs are not used to (a) either exclude companies from implementing a standard or (b) to extract unreasonable, unfair or discriminatory royalties?

The consultation, which is open until 31 January 2015, follows a study by the Commission on "Patents and Standards". This study collects data on intellectual property based standardisation, and focuses on identifying barriers to the efficient licensing of SEPs and on suggesting possible solutions to these barriers. The study analyses these barriers in the context of four standard-dependent industries: communication technology, consumer electronics, automotive and smart grids.

open bookThe contents of the report and, it is hoped, the feedback to the consultation are expected to be an important guide to the Commission in its attempts to improve the European governance of licensing arrangements for both patent holders and implementers of standards. The report and the consultation are also timely in that they come shortly before the Opinion of the Advocate General (AG) in the Huawei v ZTE (C-170/13). This case concerns several of the most urgent problems arising in disputes concerning FRAND-pledged patents. The Opinion of the AG, and subsequently the ruling of the CJEU, may establish important guidelines for future cases. The Opinion of the Advocate General is expected on 20 November 2014.

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IP, patents, copyright wordsearch
Paul England

Paul explains a new consultation by the European Commission on the issue of standards and patents.

"...the report and, it is hoped, the feedback to the consultation are expected to be an important guide to the Commission."