IP Europe blogs on the new SEP Regulation – Part 2
As the SEP Regulation moves through the European legislative process, experts continue to question whether the draft Regulation (a) responds to the concerns raised by the Commission and (b) whether the concerns motivating development of the Regulation exist, based on evidence.
IP Europe has published a series of blogs arguing that the Commission is pushing through new legislation without evidence indicating there is a need for such action. In the third blog, IP Europe focuses on SMEs arguing that that SMEs’ involvement litigation regarding SEPs is rare. The author suggests the Commission may have theorized the problems that SEP litigation is causing for SMEs rather than relying on empirical evidence to form conclusions. In the fourth blog, aggregate royalties is the focus. The author points to the Commission’s perception that there is an absence of information about SEPs and licensing, and thus more SEP disputes, when in reality the Commission’s own impact assessment does not support this. In the fifth blog of the series, IP Europe argues that there is no support for the Commission’s claim that the dispute resolution system for SEP-related disputes is flawed, once again questioning the need for the new Regulation.
IP Europe blogs on the new SEP Regulation – Part 1
As the SEP Regulation is moving through the European legislative process, questions have been raised as to whether the draft Regulation (a) responds to the concerns raised by the Commission and (b) whether the concerns motivating development of the Regulation exist, based on evidence.
IP Europe has released a series of blogs arguing that the Commission are pushing through new legislation without evidence to support the decision. In the first two blogs, the author notes that the Commission appear to have ‘cherry picked’ the evidence that supports the Regulation and has focused on complaints by larger technology companies rather than taking an impartial view of the situation. Furthermore, the IP Europe blogs present data indicating that SEP litigation and FRAND disputes are generally declining, another basis for questioning the need for the new Regulation.
New EU Regulatory Regime for SEPs Will Upend Mobile Telecommunications Sector
This article from IP scholar Adam Mossoff presents the proposed EU SEP Regulation, which is due to
be released on 26 April by DG GROW.
According to Mossoff, the leaked SEP Regulation would be counterproductive to a range of European
goals, including ongoing innovation in cellular technology and a central role in standardization. He
points out that available evidence suggests that, at best, the SEP Regulation is unnecessary – and
that, at worst, it could stunt innovation and economic growth in the EU in the years to come.
A concern raised by the author is that the EUIPO has no previous patent law experience, yet the SEP
Regulation plans to hand full control of important SEP issues to the EUIPO. The EUIPO would
determine what patents are able to be classed as essential, thus, SEPs, along with the appropriate
royalty rates for licensing such SEPs, in addition to mandating public disclosure of licensing
agreements. Furthermore, it would also be able to prohibit licensing or litigation of SEPs that have
not been confirmed as essential, that have not been registered, or that have set a different royalty
rate for the relevant SEPs.
The author argues that, if adopted, the SEP Regulation would destabilize the global
telecommunications market as well as strongly favouring IP users over innovators.
Furthermore, Mossoff notes that this type of regulation could be advantageous for China, which
could leverage it to continue discriminatory treatment against Western innovators in cellular
technology. Overall, he expresses concern that the new EU SEP Regulation would negatively affect
technological innovation and economic growth in the EU by destroying incentives for SEP owners to
continue investing in R&D and participating in open standardization processes.
Click here to read the full article:
New EU Regulatory Regime for SEPs will Upend Mobile Telecommunications Sector, by Adam
Mossoff, 12 April 2023, IPWatchdog.
For further reading, additional resources about the leaked SEP Regulation include:
The European Commission’s SEP licensing plans are terrible on every level, by Joff Wild, 30 March
Exclusive: EU patent body to oversee tech-standard patent royalties – EU draft rule, by Foo Yun
Chee, 28 March 2023, Reuters.
European Commission departs from best practices in hasty preparation of standard-essential patent
policy proposal that is fundamentally flawed and unbalanced, by Florian Mueller, 29 March 2023,
European Commission to propose radical new SEP/FRAND regime with major consequences for
patent owners, by Adam Houldsworth, 29 March 2023, IAM.
European Commission set to give EUIPO responsibility for standard essential patents: big challenges
lie ahead, by Trevor Little, 29 March 2023, World Trademark Review.
Proposed EU SEP regulation will also harm net licensees: implementers of standard-essential patents
must be careful what they wish for, by Florian Mueller, 2 April 2023, FOSS Patents.