Opinions and Editorials

Apr. 23, 2023

IP Watchdog: Europe’s Schizophrenia on Standard Essential Patents by Gene Quinn

The European Union is reportedly considering sweeping new regulationsfor the licensing and litigation of standard essential patents (SEPs), which make fair-minded observers wonder whether any sane adults are in charge at the European Commission (EC). The EU’s proposed new regulatory regime is scheduled to be released on April 26 by the Directorate for the Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) of the European Commission (EC). And recently leaked drafts suggest that proposal will contain sweeping new regulations that will effectively put an end to the licensing and litigation of SEPs as it exists today.

According to leaked drafts, the proposed regulatory regime will mandate that SEP owners register their patents in a database maintained by the EU Intellectual Property Office (EUIPO), making the EUIPO the sole arbiter of all SEPs. The EUIPO will determine what patents are actually standard essential through the performance of so-called “essentially checks”. The EUIPO will determine royalty rates for the licensing of SEPs, it will mandate public disclosure of licensing agreements, and it will prohibit the licensing or litigation of any potential SEPs that are not registered, confirmed as essential, and designated with a royalty rate set for all the relevant SEPs. In other words, the EUIPO will take over completely from top to bottom insofar as the litigation and licensing of SEPs is concerned.

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