BETA

78 Amendments of Maria GRAPINI related to 2023/0133(COD)

Proposal for a regulation
Recital 4

(4) There are well established commercial relationships and licensing practices for certain use cases of standards, such as the standards for wireless communications, with iterations over multiple generations leading to considerable mutual dependency and significant value visibly accruing to both SEP holders and implementers. There are other, typically more novel use cases – sometimes of the same standards or subsets thereof - with less mature markets, more diffuse and less consolidated implementer communities, for which unpredictability of royalty and other licensing conditions and the prospect of complex patent assessments and valuations and related litigation weigh more heavily on the incentives to deploy standardised technologies in innovative products. Therefore, in order to ensure a proportionate and well targeted response, ~~certain procedures under this Regulation, namely the aggregate royalty determination and the compulsory FRAND determination prior to litigation, should not~~this Regulation shall only be applied to identified use cases of certain standards or parts thereof for which there is sufficient evidence that SEP licensing negotiations on FRAND terms ~~do not~~ give rise to significant difficulties or inefficiencies.

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 13

(13) The competence centre should set up and administer an electronic register and an electronic database containing detailed information on SEPs in force in one or more Member States, including essentiality check results, opinions, reports, available case-law from jurisdictions across the globe, rules relating to SEPs in third countries, and results of studies specific to SEPs. In order to raise awareness and facilitate SEP licensing for SMEs and microenterprises, the competence centre should offer assistance to SMEs and microenterprises. The setting up and administering a system for essentiality checks and ~~processes for aggregate royalty determination and~~ FRAND determination by the competence centre should include actions improving the system and the processes on a continuous basis, including through the use of new technologies. In line with this objective, the competence centre should establish training procedures for evaluators of essentiality and conciliators for providing opinions on ~~aggregate royalty as well as on~~ FRAND determination and should encourage consistency in their practices.

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 18

(18) Once a standard has been notified ~~or an aggregate royalty is specified, whichever is made first~~, the competence centre will open the registration of SEPs by holders of SEPs in force in one or more Member States.

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 20

~~(20) SEP holders may register after the indicated time limit. However, in that case, SEP holders should not be able to collect royalties and claim damages for the period of delay.~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 23

(23) A SEP holder may also request the modification of a SEP registration. An interested stakeholder may also request the modification of a SEP registration, if it can demonstrate that the registration is inaccurate based on a definitive decision by a public authority. A SEP can only be removed from the register at the request of the SEP holder, if the patent is expired, was invalidated or found non-essential by a final decision or ruling of a competent court of a Member State ~~or found non- essential under this Regulation~~.

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 33

(33) The FRAND determination would be a mandatory step before a SEP holder would be able to initiate patent infringement proceedings or an implementer could request a determination or assessment of FRAND terms and conditions concerning a SEP before a competent court of a Member State. However, the obligation to initiate FRAND determination before the relevant court proceedings should not be required for SEPs covering those use cases of standards for which the Commission establishes that there are no significant difficulties or inefficiencies in licensing on FRAND terms.

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 35

(35) The obligation to initiate FRAND determination should not be detrimental to the effective protection of the parties’ rights. In that respect, the party that commits to comply with the outcome of the FRAND determination while the other party fails to do so should be entitled to initiate proceedings before the competent national court pending the FRAND determination. In addition, e to address infringement and validity of SEPs. Therefore, the FRAND determination shall run in parallel to any court proceedings, except in cases where an SME is involved as a defendant. Either party should be able to request a provisional injunction of a financial nature before the competent court. In a situation where a FRAND commitment has been given by the relevant SEP holder, provisional injunctions of an adequate and proportionate financial nature should provide the necessary judicial protection to the SEP holder who has agreed to license its SEP on FRAND terms, while the implementer should be able to contest the level of FRAND royalties or raise a defence of lack of essentiality or of invalidity of the SEP. In those national systems that require the initiation of the proceedings on the merits of the case as a condition to request the interim measures of a financial nature, it should be possible to initiate such proceedings~~, but the parties should request that the case be suspended during the FRAND determination~~. When determining what level of the provisional injunction of financial nature is to be deemed adequate in a given case, account should be taken, inter alia, of the economic capacity of the applicant and the potential effects for the effectiveness of the measures applied for, in particular for SMEs and microenterprises, also in order to prevent the abusive use of such measures. ~~It should also be clarified that once the FRAND determination is terminated, the whole range of measures, including provisional, precautionary and corrective measures, should be available to parties.~~

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 36

(36) When the parties enter into the FRAND determination, they should select a conciliator for the FRAND determination from the roster. In case of disagreement, the competence centre would select the conciliator. The FRAND determination should be concluded within 96 months. This time would be necessary for a procedure that ensures that the rights of the parties are respected and at the same time is sufficiently swift to avoid delays in concluding licences. Parties may settle at any time during the process, which results in the termination of the FRAND determination.

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 39

(39) If a party fails to engage in the FRAND determination after the conciliator has been appointed, the other party may request the termination or may request that the conciliator issues a recommendation for a FRAND determination on the basis of the information it was able to assess.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 42

(42) The Regulation respects the intellectual property rights of patent owners (Article 17(2) of EU Charter of Fundamental Rights), although it includes a restriction on the ability to enforce a SEP that has not been registered within a certain time-limit and introduces a requirement to conduct a FRAND determination before enforcing individual SEPs. The limitation on the exercise of intellectual property rights is allowed under the EU Charter, provided that the proportionality principle is respected. According to settled case-law, fundamental rights can be restricted provided that those restrictions correspond to objectives of general interest pursued by the Union and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes the very essence of the rights guaranteed39 . In that respect, this Regulation is in the public interest in that it provides a uniform, open and predictable information and outcome on SEPs for the benefit of SEP holder, implementers and end users, at Union level. It aims at dissemination of technology for the mutual advantage of the SEP holders and implementers. Furthermore, the rules concerning the FRAND determination are temporary thus limited and aimed at improving and streamlining the process but are not ultimately binding.40 __________________ 39 Judgment of the Court of Justice of 13 December 1979, Hauer v. Land Rheinland-Pfalz, C-44/79, EU:C:1979:290, para. 32; judgment of the Court of Justice of 11 July 1989, Hermann Schräder HS Kraftfutter GmbH & Co. KG v. Hauptzollamt Gronau, C- 256/87, EU:C:1999:332, para. 15, and judgment of the Court of Justice of 13 July 1989, Hubert Wachauf v. Bundesamt für Ernährung und Forstwirtschaft, C- 5/88, EU:C:1989:321, paras. 17 and 18. 40 The conciliation procedure follows the conditions for mandatory recourse to alternative dispute settlement procedures as a condition for the admissibility of an action before the courts, as outlined in the CJEU judgments; Joint Cases C-317/08 to C-320/08 Alassini and Others of 18 March 2010, and Case C-75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa of 14 June 2017, taking into account the specificities of SEP licensing.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 47

(47) In order to ~~supplement certain non-essential elements~~correctly focus and develop the scope of this Regulation, the power to adopt acts, in accordance with Article 290 of the Treaty on the Functioning of the European Union, should be delegated to the Commission in respect of ~~the items to be entered in the register or in respect of~~ determining the relevant ~~existing~~ standards or to identify use cases of standards or parts thereof for which the Commission establishes that there are no significant difficulties or inefficiencies in licensing on FRAND terms. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making44 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. __________________ 44 OJ L 123, 12.5.2016, p. 1.

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 48

(48) In order to ensure uniform conditions for the implementation of the relevant provisions of this Regulation, implementing powers should be conferred on the Commission to adopt the detailed requirements for the selection of evaluators and conciliators, as well as adopt the rules of procedure and Code of Conduct for evaluators and conciliators. The Commission should also adopt the technical rules for the selection of a sample of SEPs for essentiality checks and the methodology for the conduct of such essentiality checks by evaluators and peer evaluators. The Commission should also determine any administrative fees for its services in relation to the tasks under this Regulation and fees for the services evaluators, experts and conciliators, derogations thereof and payment methods and adapt them as necessary. ~~The Commission should also determine the standards or parts thereof that have been published before the entry into force of this Regulation, for which SEPs can be registered.~~ Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council .45 __________________ 45 Regulation (EU) No 182/2011 of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13.)

2023/10/27
Committee: IMCO

Proposal for a regulation
Recital 49

(49) Regulation (EU) 2017/1001 of the European Parliament and of the Council46 should be amended to empower EUIPO to take on the tasks under this Regulation. The functions of the Executive Director should also be expanded to include the powers conferred on him under this Regulation. Furthermore, the EUIPO’s arbitration and mediation centre should be empowered to set up processes such as the ~~aggregate royalty determination and the~~ FRAND determination. __________________ 46 Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ L 154, 16.6.2017, p. 1.)

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 1 – paragraph 2 – introductory part

2. This Regulation shall apply to patents that are in force in one or more Member States and are essential to a standard that has been published by a standard development organisation, to which the SEP holder has made a commitment to license its SEPs on fair, reasonable and non-discriminatory (FRAND) terms and conditions and that is not subject to a royalty-free intellectual property policy, after the entry into force of this Regulation, in accordance with article 66.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 1 – paragraph 2 – point a

~~(a) after the entry into force of this Regulation, with the exceptions provided in paragraph 3;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 1 – paragraph 2 – point b

~~(b) before the entry into force of this Regulation, in accordance with Article 66.~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 1 – paragraph 4

4. Where there is sufficient evidence that, as regards identified use cases of certain standards or parts thereof, SEP licensing negotiations on FRAND terms ~~do not~~ give rise to significant difficulties or inefficiencies affecting the functioning of the internal market, the Commission shall, after an appropriate consultation process, by means of a delegated act pursuant to Article 67, ~~establish a list of~~bring such use cases, standards or parts thereof, ~~for the purposes of paragraph 3~~within the scope of the Regulation.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 2 – paragraph 1 – point 1

(1) ‘standard essential patent’ or ‘SEP’ means any patent that is proved that is essential to a standard;

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 2 – paragraph 1 – point 10

~~(10) ‘aggregate royalty’ means the maximum amount of royalty for all patents essential to a standard;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 3 – paragraph 2 – point a

(a) set up and maintain an electronic register and an electronic database for SEPs, complying with the General Data Protection Regulation ;

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 3 – paragraph 2 – point c

(c) set up and administer a system for assessment of the essentiality of SEPs based on explicit and verifiable criteria;

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 3 – paragraph 2 – point f

~~(f) administer a process for aggregate royalty determination;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 3 – paragraph 2 – point h

(h) provide training, support and general advice on SEPs to SMEs and microenterprises;

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 5 – paragraph 1

1. The competence centre shall establish and maintain an electronic database for SEPs, complying with the General Data Protection Regulation.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 5 – paragraph 2 – point c

(c) public standard terms and conditions for SEP licensing to SMEs and microenterprises pursuant to Article 62(1), if available;

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 10 – paragraph 1 – introductory part

1. Competent courts of Member States shall notify the competence centre within maximum 6 months from the adoption of a judgment concerning SEPs on:

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 10 – paragraph 2

2. Any person may inform the competence centre about any judicial proceeding ~~or alternative dispute resolution proceeding concerning a SEP~~.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 11 – paragraph 1

1. Persons involved in alternative dispute resolution proceedings concerning SEPs in force in a Member State shall disclose to the competence centre within 6 months from the termination of the procedure the standards and the implementations concerned, the methodology used for the calculation of FRAND terms and conditions, information on the name of the parties, and on specific licensing rates determined.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 11 – paragraph 2

~~2. No confidential information shall be disclosed by the competence centre without the prior consent of the affected party.~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 13 – paragraph 3

3. The competence centre shall include in the database case-law from competent courts of Member States, and from third country jurisdictions ~~and alternative dispute resolution bodies~~.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 13 – paragraph 4

4. The competence centre shall collect all information on FRAND terms and conditions, including any discounts, which have been made public by SEP holders, ~~disclosed to it pursuant to Article 11~~ and included in the FRAND determination reports and shall make such disclosures accessible to public authorities in the Union, including competent courts of Member States, subject to a written request. Confidential documents shall be accompanied by a non-confidential version of the information submitted in confidence in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 15

Notification of an aggregate royalty to the 1. more Member States for which FRAND commitments have been made may jointly notify the competence centre the aggregate royalty for the SEPs covering a standard. 2. accordance with paragraph (1) shall contain the information on the following: (a) standard; (b) that define the standard; (c) making the notification referred to in paragraph (1); (d) holders referred to in paragraph (1) represent from all SEP holders; (e) they own collectively from all SEPs for the standard; (f) the implementations known to the SEP holders referred to in point (c); (g) the global aggregate royalty, unless the notifying parties specify that the aggregate royalty is not global; (h) royalty referred to in paragraph (1) is valid. 3. The notification referred to in paragraph (1) shall be made at the latest 120 days after: (a) the standard development organisation for implementations known to the SEP holders referred to in paragraph (2), point (c); or (b) a new implementation of the standard becomes known to them. 4. The competence centre shall publish in the database the information provided under paragraph (2).Article 15 deleted competence centre Holders of SEPs in force in one or The notification made in the commercial name of the the list of technical specifications the names of the SEP holders the estimated percentage the SEP the estimated percentage of SEPs any period for which the aggregate the publication of a standard by

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 17 – paragraph 1

1. Holders of SEPs in force in one or more Member States representing at least 205 % of all SEPs of a standard may request the competence centre to appoint a conciliator from the roster of conciliators to mediate the discussions for a joint submission of an aggregate royalty.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 18

~~[...]~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 22 – paragraph 5

5. A SEP holder whose SEP has been suspended from the register pursuant to paragraph (4) and considers that the finding of the competence centre is incorrect may apply before the Boards of Appeal of the EUIPO for a decision on the matter. The application shall be made within 2 months from the suspension. Within 2 months from the application, the Boards of Appeal of the EUIPO shall either reject the application or request the competence centre to correct its finding and inform the requesting person.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 23 – paragraph 6

6. A SEP holder whose SEP has been suspended from the register pursuant to paragraph (5) and considers that the finding of the competence centre is incorrect may apply before the Boards of Appeal of the EUIPO for a decision on the matter. The application shall be made within 2 months from the suspension. Within two months from the application, the Boards of Appeal of the EUIPO shall either reject the application or request the competence centre to correct its finding and inform the requesting person.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 24

Effects of absence of registration or suspension of registration of SEPs 1. the time-limit set out in Article 20(3) may not be enforced in relation to the implementation of the standard for which a registration is required in a competent court of a Member State, from the time- limit set out in Article 20(3) until its registration in the register. 2. registered its SEPs within the time-limit set out in Article 20(3) shall not be entitled to receive royalties or seek damages for infringement of such SEPs in relation to the implementation of the standard for which registration is required, from the time-limit set out in Article 20(3) until its registration in the register. 3. prejudice to provisions included in contracts setting a royalty for a broad portfolio of patents, present or future, stipulating that the invalidity, non- essentiality or unenforceability of a limited number thereof shall not affect the overall amArticle 24 deleted A SEP that is not registered within A SEP holder that has not Paragraphs (1) and (2) are withount and enforceability of the royalty or other terms and conditions of the contract. 4. in case the registration of a SEP is suspended, during the suspension period pursuant to Article 22(4) or 23(5), except where the Boards of Appeal request the competence centre to correct its findings in accordance with Article 22(5) and 23(6). 5. State requested to decide on any issue related to a SEP in force in one or more Member States, shall verify whether the SEP is registered as part of the decision on admissibility of the action.Paragraphs (1) and (2) apply also A competent court of a Member

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 26 – paragraph 2 – introductory part

2. A conciliator shall ~~conduct the following tasks:~~serve in a FRAND determination.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 26 – paragraph 2 – point a

~~(a) mediate among parties in establishing an aggregate royalty;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 26 – paragraph 2 – point b

~~(b) provide a non-binding opinion on an aggregate royalty;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 26 – paragraph 2 – point c

~~(c) serve in a FRAND determination.~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 26 – paragraph 5 – introductory part

5. By [OJ: please insert the date = 18 months from entry into force of this regulation], the Commission shall by means of an implementing act adopted in accordance with the examination procedure referred to in Article 68(2), lay down the practical and operational arrangements concerning:

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 26 – paragraph 5 – point b

(b) the procedures pursuant to Articles ~~17, 18,~~ 31 and 32 and Title VI.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 27 – paragraph 1

1. The competence centre shall conduct a transparent procedure of selecting candidates based on the requirements established in the implementing act referred to in Article 26(5).

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 34 – paragraph 4

4. The obligation to initiate FRAND determination pursuant to paragraph 1 ~~prior to the court proceedings~~ is without prejudice to the possibility for either party to request, pending the FRAND determination, the competent court of a Member State to issue a provisional injunction ~~of a financial nature~~ against the alleged infringer. ~~The provisional injunction shall exclude the seizure of property of the alleged infringer and the seizure or delivery up of the products suspected of infringing a SEP.~~ Where national law provides that the provisional injunction ~~of a financial nature~~ can only be requested where a case is pending on the merits, either party may bring a case on the merits before the competent court of a Member State for that purpose. ~~However, the parties shall request the competent court of a Member State to suspend the proceedings on the merits for the duration of the FRAND determination.~~ In deciding whether to grant the provisional injunction, the competent court of a Member States shall consider that a procedure for FRAND determination is ongoing.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 34 – paragraph 5

~~5. Once the FRAND determination is terminated, the whole range of measures, including provisional, precautionary and corrective measures, shall be available to parties.~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 37 – paragraph 2

~~2. The period for the time barring of claims before a competent court of a Member State shall be suspended for the duration of the FRAND determination.~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 38 – paragraph 4 – introductory part

4. Where the responding party agrees to the FRAND determination and commits to comply with its outcome pursuant to paragraph (2), including where such commitment is contingent upon the commitment of the requesting party to comply with the outcome of the FRAND determination, the following shall apply:, the FRAND determination shall continue and upon mutual agreement the outcome may be binding for both parties.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 38 – paragraph 4 – point a

(a) the competence centre shall notify the requesting party thereof and request to inform the competence centre within seven days whether it also commits to comply with the outcome of the FRAND determination. In case of acceptance of the commitment by the requesting party, the FRAND determination shall continue and the outcome shall be binding for both parties;deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 38 – paragraph 4 – point b

(b) where the requesting party does not reply within the time limit referred to in subparagraph (a) or informs the competence centre of its decision not to commit to comply with outcome of the FRAND determination, the competence centre shall notify the responding party and invite it to indicate within seven days whether it requests the continuation of the FRAND determination.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 38 – paragraph 4 – point c

(c) where the responding party requests the continuation of the FRAND determination, the FRAND determination shall continue, but Article 34(1) shall not apply to the court proceedings for by the responding party in relation to the same subject matter;deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 38 – paragraph 4 – point d

(d) where the responding party fails to request, within the time-limit referred to in subparagraph (b), the continuation of the FRAND determination, the competence centre shall terminate the FRAND determination.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 38 – paragraph 5

5. Where either party commits to comply with the outcome of the FRAND determination, while the other party fails to do so within the applicable time limits, the competence centre shall adopt a notice of commitment to the FRAND determination and notify the parties within 5 days from the expiry of the time- limit to provide the commitment. The notice of commitment shall include the names of the parties, the subject-matter of the FRAND determination, a summary of the procedure and information on the commitment provided or on the failure to provide commitment for each party.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 38 – paragraph 6

6. The FRAND determination shall concern a global SEP licence, unless otherwise specified by the parties ~~in case both parties agree to the FRAND determination or by the party that requested the continuation of the FRAND determination~~. SMEs that are parties to the FRAND determination may request to limit the territorial scope of the FRAND determination.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 39 – paragraph 1

1. Following the reply to the FRAND determination by the responding party in accordance with Article 38(2), ~~or the request to continue in accordance with Article 38(5),~~ the competence centre shall propose at least 3 candidates for the FRAND determination from the roster of conciliators referred to Article 27(2). The parties ~~or party~~ shall select one of the proposed candidates as a conciliator for the FRAND determination.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 44 – paragraph 1

1. A party may submit an objection stating that the conciliator is unable to make a FRAND determination on legal grounds, such as a previous binding FRAND determination or agreement between the parties~~, no later than in the first written submission~~ at any time. The other party shall be given opportunity to submit its observations.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 45 – paragraph 2

2. The conciliator may invite the parties ~~or the party requesting the continuation of the FRAND determination~~ to meet with him/her or may communicate with him/her orally or in writing.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 45 – paragraph 3

3. The parties ~~or the party requesting the continuation of the FRAND determination~~ shall cooperate in good faith with the conciliator and, in particular, shall attend the meetings, comply with his/her requests to submit all relevant documents, information and explanations as well as use the means at their disposal to enable the conciliator to hear witnesses and experts whom the conciliator might call.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 46 – paragraph 1 – point b

~~(b) withdraws its commitment to comply with the outcome of the FRAND determination as set out in Art. 38, or~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 46 – paragraph 3

3. If the party requesting the continuation of the FRAND determination fails to comply with any request of the conciliator or in any other way fails to comply with a requirement relating to the FRAND determination, the conciliator shall terminate the procedure.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 54 – paragraph 3 a (new)

3 a. A conciliator shall respect the confidentiality rights of third parties, for instance concerning a confidential license from or to either party. The third party shall be notified by the conciliator and afforded a reasonable opportunity to make its representations concerning the protection of its confidential material in the conduct of the FRAND determination and any subsequent report.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 54 – paragraph 3 b (new)

3 b. Where confidentiality provisions are agreed or imposed in a FRAND determination they shall have contractual force, and shall include the right to seek ex parte injunctive relief against disclosure in any relevant court.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 55 – paragraph 1

1. At the latest 45 days before the end of the time limit referred to in Article 37, the conciliator shall submit a reasoned proposal for a determination of FRAND terms and conditions to the parties ~~or, as applicable, the party requesting the continuation of the FRAND determination~~.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 55 – paragraph 2

2. Either party may submit observations to the proposal and suggest amendments to the proposal by the conciliator, who may reformulate its proposal to take into account the observations submitted by the parties and shall inform the parties ~~or the party requesting the continuation of the FRAND determination, as applicable,~~ of such reformulation.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 56 – paragraph 1 – introductory part

1. In addition to the termination of the FRAND determination for reasons provided for Article 38(43), Article 44(3), Article 45(54), Article 46(2), point (b), ~~Article 46(3)~~ and Article 47(2), the FRAND determination shall be terminated in any of the following ways :

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 56 – paragraph 1 – point d a (new)

(d a) a binding FRAND determination agreed between the parties pursuant to Article 38(4) shall terminate when the conciliator makes its final reasoned proposal under Article 55.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 56 – paragraph 4

4. AIn any claim involving an SME as defendant, a competent court of a Member State, asked to decide on determination of FRAND terms and conditions, including in abuse of dominance cases among private parties, or SEP infringement claim concerning a SEP in force in one or more Member States subject to the FRAND determination shall not proceed with the examination of the merits of that claim, unless it has been served with a notice of termination of the FRAND determination, or, in the cases foreseen in Article 38(3)(b) and Article 38(4)(c), with a notice of commitment pursuant to Article 38(5). In all other cases a court may proceed in parallel with any FRAND determination.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 56 – paragraph 5

~~5. In the cases foreseen in Article 38(3)(b) and in Article 38(4)(c), Article 34(5) shall apply mutatis mutandis in the proceedings before a competent court of a Member State.~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 63 – paragraph 2 – point a

~~(a) for the conciliators facilitating agreements on aggregate royalty determinations in accordance with Article 17;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 63 – paragraph 2 – point b

~~(b) for the expert opinion on aggregate royalty in accordance with Article 18;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 63 – paragraph 3 – point a

~~(a) the fees referred to in paragraph (2), point (a) by the SEP holders that participated in the process based on their estimated percentage of SEPs from all SEPs for the standard;~~deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 63 – paragraph 3 – point b

(b) the fees referred to in paragraph (2), point (b) equally by the parties that participated in the procedure of the expert opinion on aggregate royalty, unless they agree otherwise, or the panel suggests a different apportionment based on the size of the parties determined on the basis of their turnover;deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 64 – paragraph 2

2. If the amounts requested are not paid in full within 10 days after the date of the request, the competence centre may notify the defaulting party and give it the opportunity to make the required payment within [5] days. It shall submit a copy of the request to the other party, in case of ~~an aggregate royalty or~~ FRAND determination.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 66 – title

~~Opening registration for an existing standard~~Delegated act procedure to bring standard and use cases within the scope of the Regulation

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 66 – paragraph 1

1. ~~Until [OJ: please insert the date = 28 months from the entry into force of this regulation] holders of SEPs essential to a standard published before the entry into force of this Reg~~Where and when the functioning of the internal market is severely distorted due to inefficiencies in the licensing of SEPs, the Commission shall, after an appropriate consultation (‘existing standards’), for which FRAND commitments have been made, may notify the competence centre pursuant to Articles 14, 15 and 17 of any of the existing standards or parts thereof that will be deterprocess, by means of a delegated act pursuant to Article 67, determine which standards published after the cominedg in ~~the delegated act in accordance with paragraph (4). The procedures, notification and publication requirements set out in this Regulation apply mutatis mutandis~~to effect of this Regulation, parts thereof or relevant use cases shall be brought within the scope of the Regulation.

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 66 – paragraph 2

2. Until [OJ: please insert the date = 28 months from entry into force of this regulation] implementers of a standard, standard published before the entry into force of this Regulation, for which FRAND commitments have been made may notify pursuant to Article 14(4) the competence centre of any of the existing standards or parts thereof, that will be determined in the delegated act in accordance with paragraph (4). The procedures, notification and publication requirements set out in this Regulation apply mutatis mutandis.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 66 – paragraph 3

3. Until [OJ: please insert the date = 30 months from entry into force of this regulation] a SEP holder or an implementer may request an expert opinion pursuant to Article 18 regarding SEPs essential to an existing standard or parts thereof, that will be determined in the delegated act in accordance with paragraph (4). The requirements and procedures set out in Article 18 apply mutatis mutandis.deleted

2023/10/27
Committee: IMCO

Proposal for a regulation
Article 66 – paragraph 4

4. Where the functioning of the internal market is severely distorted due to inefficiencies in the licensing of SEPs, the Commission shall, after an appropriate consultation process, by means of a delegated act pursuant to Article 67, determine which of the existing standards, parts thereof or relevant use cases can be notified in accordance with paragraph (1) or paragraph (2), or for which an expert opinion can be requested in accordance with paragraph (3). The delegated act shall also determine which procedures, notification and publication requirements set out in this Regulation apply to those existing standards. The delegated act shall be adopted within [OJ: please insert the date = 18 months from entry into force of this regulation].deleted

2023/10/27
Committee: IMCO