On 27 April 2023, the European Commission presented its proposal. The proposed regulation aims at improving the licensing of SEPs by reducing the uncertainty that surrounds licensing negotiations and lowering transaction costs. In order to achieve these objectives, the Commission has considered different policy options. Of these, the Proposal implements (1) the setting up of a mandatory register for SEPs with essentiality checks of selected and representative random samples of SEPs, (2) the establishment of a process for determining a non-binding aggregate royalty rate, and (3) a mandatory pre-litigation conciliation procedure for FRAND royalty determination, combined with (4) voluntary guidance on SEP licensing. Institutionally, a new competence centre within the European Intellectual Property Office (EUIPO) is to be in charge of managing and performing these tasks.
Position Statement on the Commission’s Proposal for a Regulation on Standard Essential Patents
The Position Statement of the Max Planck Institute for Innovation and Competition of 6 February 2024 on the Commission's Proposal for a Regulation on Standard Essential Patents, assesses the proposal in the light of its adequacy to address the challenges of SEP licensing in the context of the Internet of Things and its potential for contributing to a balanced global SEP licensing. Preceding these assessments, the Institute elaborates on the legal and economic foundations of an innovation-oriented standardisation and outlines the context in which major problems addressed by the Commission’s Proposal arise.