The European Commission recently presented its guidance on the standard-essential patent (SEP) licensing. The antitrust authority has dealt with the question of the availability of injunctions for SEP holders and the interpretation of fair reasonable and non-discriminatory (FRAND) SEP holders' obligation to license SEPs on the basis of fair, reasonable and non-discriminatory terms.
In its guidance, the European Commission decided to adopt a neutral stance. The guidance covered the following key points:
Royalties should be determined on the basis of the value that the technology adds to the end product – the European Commission does not embrace either a smallest saleable practising unit or an end-product approach.
Following Unwired Planet, licenses can be global in scope.
Patent pools and licensing platforms within the scope of EU competition law should be encouraged. They act as one-stop-shop solutions, capable of addressing some of the common challenges identified in the paper (e.g., essentiality checks and clarity on licensing fees). This area is flagged as being particularly important for the Internet of Things.
Patent assertion entities and non-practicing entities are subject to the same rules as other SEP holders, including with regard to injunctions.
For more information, please visit https://ec.europa.eu/docsroom/documents/26583