Or, the tale of the real Regulation which takes a long-overdue stab at correcting market failure long plaguing EU SEPs licensing.
As the European Parliament (the “EP”) pushes on with legislating the SEPs Framework Regulation, SEPs holders – worried that their cozy run at achieving supra-normal royalties may (finally) be under threat in Europe – have bombarded the Parliamentary Committees and individual MEPs with messages saying no market failure could be discerned, and that no regulation is needed to correct something that (supposedly) isn’t happening.
Lobbying for one’s cause may not qualify as “fake news” in the strict sense, I get that (and I apologize for any linguistic offense caused). But let me unpeal the geopolitical messaging for you:
I do trust our MEPs to see through the strategizing taking place, navigating the terminology
and inherent complexity of
licensing to come to the same result – regulation is needed, and the SEPs Framework Regulation
(as amended by JURI) is
fit for purpose.
To be continued!
As always, views in this post are my personal views only.
Or, Internal Market is all about leveling the (licensing) playing field
Fresh on the heels of my previous post, more evidence is emerging that the European Parliament (EP) is progressing well its review of the SEPs Framework Regulation. After JURI (Legal Affairs) and INTA (International Trade), now also the IMCO (the Committee covering the Internal Market and Consumer Protection) opinion has entered circulation.
Fresh on the heels of my previous post, more evidence is emerging that the European Parliament (EP) is progressing well its review of the SEPs Framework Regulation. After JURI (Legal Affairs) and INTA (International Trade), now also the IMCO (the Committee covering the Internal Market and Consumer Protection) opinion has entered circulation.
The EU Internal Market is all about leveling the playing field within the Union, and,
unsurprisingly, IMCO “fully
supports” the objectives the European Commission has set out to achieve with the SEPs
Framework Regulation, by proposing
amendments that ensure all standards are brought in-scope of the new Regulation. Most notably,
as JURI, IMCO proposes to
delete Recital 4 that provided a loophole to Wi-Fi, HEVC and LTE, and it also removes the
entire Article 66 process for
delegated acts (seen to overly facilitate the ability for SEP holders to achieve injunctions
to the detriment of
innovation and European resilience).
Further, IMCO improves on two key aspects of the SEPs Framework Regulation, the determination
processes for (i) FRAND
and (ii) aggregate royalties:
Besides those big brush strokes, IMCO introduces a slew of amendments aiming at strengthening the EUIPO processes, streamlining the existing draft, improving transparency further, and providing further benefits to SMEs (while distinguishing them from patent assertion companies). Another constructive contribution, this, also highlighting the investment that will need to be done to enable the EUIPO to take on this new and important task.
With the three opinions available, look for intense discussions to take place within the EP
over the next couple of
weeks. IMCO and INTA will aim to finalize by October 26 as things stand now, JURI to follow
the next day (October 27).
Votes to follow in November.
Meanwhile, the Spanish presidency is hard at work positioning the Council. Watch this space
for further developments!
As before, this post covers my personal views only.
Or, why to put good lawyers in your Committee on Legal Affairs
The European Parliament (EP) is powering on with its review of the SEPs Framework Regulation. Reports of the reviewing Committees are due by end of the month. Draft versions are already circulating (this is Brussels, after all).
The European Parliament (EP) is powering on with its review of the SEPs Framework Regulation. Reports of the reviewing Committees are due by end of the month. Draft versions are already circulating (this is Brussels, after all).
The key report is from the Committee on Legal Affairs (JURI), which is in the lead. It’s a constructive effort to further safeguard European interests. The draft report sets out to solidify the draft from the European Commission, by (i) improving legal certainty and (ii) balancing further the interests of both SEP holders and SEP implementers. Mostly SEP holders have bemoaned the Commission drafting (inconsistencies, lack of experience, all too one-sided, etc.). They should read twice now:
The one area where JURI might want to do some further work is on aggregate royalties. Noting (in the accompanying explanatory statement) that JURI believes it should not be possible for either the SEP holders or SEP implementers to engage in one-sided blocking tactics, one might expect some change to be forthcoming still on Article 18 (which is the sole gateway for SEP implementers to launch an aggregate royalty determination, but, at present, still hinging on SEP holder engagement).
All in all, though, a laudable effort by JURI – or, why to put lawyers in charge of reviewing legislative proposals.
Not so, by the way, from another EP Committee (INTA, the EP committee dealing with international trade). INTA is not part of the immediate review process relating to the SEPs Framework Regulation, but seems to believe it should contribute a de-constructive “no need for any of this” view in a blatant attempt at pandering the SEP holder side. Pity, that. Actually engaging with the Commission proposal might have added to the critical discourse.
Let’s watch this space, and (also) see what the other Committee with a direct stake in the review (IMCO, the EP committee dealing with the internal market) produces.
Finally, lest anyone might think otherwise, this post covers my personal views only.