Monday, May 1, 2023

The (Now Officially Released) EC Proposal for a Regulation on Standard-Essential Patents

The big news last week was that the European Commission released its proposals for regulations relating to SEPs; compulsory licenses for emergencies; and a unitary supplemental protection certificate (SPC) system intended to complement the UPC.  The EC's press release is available here, with links to the individual documents.  A draft of the first of these proposals, relating to SEPs, was leaked several weeks ago, and there has been considerable discussion about that draft already, including my own initial observations (here); a series of highly critical commentaries on the draft by Florian Mueller, the most recent of which is available here, and which collectively cite to several other critical commentaries; and largely favorable commentary by Enrico Bonadio and Dyuti Pandya (here), Jorge Contreras (here), and Joachim Henkel (here).

Commentary published after the official release of the proposal last week notes some differences from the initial proposal, the most important of which is probably to make it a default rule that the EUIPO’s Competence Center would determine a global FRAND royalty.  See Roya Ghafele, FRAND Determination is Center Stage in EC Proposed Standard Essential Patents Regulation, Kluwer Patent Blog, Apr. 27, 2023; Florian Mueller, European Commission's formal SEP Regulation proposal addressed certain issues and is now criticized by both net licensors and net licensees of standard-essential patents, FOSS Patents, Apr. 28, 2023.  The proposal still doesn't specify any particular methodology for making FRAND determinations, however, though Dr. Ghafele believes that the proposal's emphasis on aggregate royalty rates suggests that it contemplates a top-down methodology.  I should note that her firm, OxFirst, will be hosting a free webinar, titled "Rapid Reaction: The European Commission’s Intellectual Property Action Plan," this coming Friday, May 5.  Registration is available here.

The EC’s other two initiatives, relating to compulsory licensing and to SPCs, are topics I will probably take up in due course.  


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