Thursday, April 30, 2020

Competing Perspectives on "License to All" Versus "Access to All" Under EU Law

The question of whether owners of FRAND-committed SEPs are obligated, under E.U. law, to license their SEPs to suppliers (e.g., component manufacturers) at any level of the supply chain who want one ("license to all") or only to, say, end users ("access to all"), is a topic of discussion in the following papers, which reach quite different conclusions.  (For previous discussion of "license to all" versus "access to all," see also this article by Judge Thomas Kühnen, which I mentioned here in November.) 

1.  Damien Geradin has posted a paper on ssrn titled SEP Licensing After Two Decades of Legal Wrangling:  Some Issues Solved, Many Still to AddressHere is a link to the paper (previously noted on FOSS Patents), and the abstract is below.  The discussion of "license to all" versus "access to all" comes mostly toward the end of the paper.
This paper explores where we stand after two decades of European Commission investigations, substantial patent litigation in national courts, and a major judgement of the Court of Justice of the European Union devoted to SEP licensing and its relationship with EU competition law. As will be seen, while consensus has been reached over several issues, a lot remains to be done. This paper is divided in four parts. Part II describes the issues that have been addressed, albeit not always satisfactorily, by competition authorities and courts over the past years. Part III discusses some of the SEP licensing issues that still largely need to be solved with a focus on six questions: (i) what is the nature of the FRAND commitment?; (iii) what is a FRAND license?; (ii) should the gaps left by the CJEU in Huawei v. ZTE be filled and if so how?; (iv) can a court that finds that local SEPs have been infringed force the infringer to take a global license on pain of an injunction?; (v) access for all v. license to all: What are the obligations of the SEP holder?; and (vi) how should SEP licensing adapt the IoT context? Part IV concludes. 
2.  Jean-Sébastien Borghetti, Igor Nikolic, and Nicolas Petit have posted a paper titled FRAND Licensing Levels Under EU LawHere is a link to the paper, and here is the abstract:
 This paper investigates whether EU or national law provide legal authority to impose a direct or indirect obligation on Standard Essential Patent (“SEP”) holders to license at all levels of the value chain, including at component level (“license to all”, hereafter LTA). Extensive analysis of EU text and case-law (general principles of EU law, patent, contract and competition laws) suggests that there are only very limited doctrinal grounds to impose an LTA obligation on SEP holders that made a FRAND commitment. Similarly, French contract law – which applies to FRAND-committed SEP before the European standard setting organisation ETSI – does not give rise to a legal basis for the introduction of a ‘license to all’ regime. In the rare cases where licensing obligations might be imposed on SEP holders, these would effectively be akin to compulsory licensing, where public policy calls for restraint.
3.  Florian Mueller also has a recent post relevant to this issue on FOSS Patents, see here

4.  In other FRAND-related news, Enrico Bonadio and Luke McDonagh have published a post titled on the Kluwer Patent Blog.  The post expresses the authors' hopes and expectations for a report, expected later this year, on licensing and valuation of SEPs. to be published by an E.U. Group of Experts.

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