Activities of Patrick BREYER related to 2023/0133(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on standard essential patents and amending Regulation (EU) 2017/1001
Amendments (100)
Amendment 119 #
Proposal for a regulation
Recital 2
Recital 2
(2) This Regulation aims at improving the licensing of SEPs, by addressing the causes of inefficient licensing such as insufficient transparency with regard to SEPs, fair, reasonable and non- discriminatory (FRAND) terms and conditions and licensing in the value chain, and limited use of dispute resolution procedures for resolving FRAND disputes. All these together reduce the overall fairness and efficiency of the system and result in excess administrative and transactional costs. By improving the licensing of SEPs, the Regulation aims to incentivise participation by European firms in the standard development process and the broad implementation of such standardised technologies, particularly in Internet of Things (IoT) industries. Therefore, this Regulation pursues objectives that are complementary to, but different from that of protecting undistorted competition, guaranteed by Articles 101 and 102 TFEU. This Regulation should also be without prejudice to national competition rules. The non-discriminatory character of licensing for SEPs by any patent holder, including patent pool participants, should draw particular scrutiny when implementing this Regulation, in the aim of promoting the standardisation process and innovation in the EU.
Amendment 123 #
Proposal for a regulation
Recital 3
Recital 3
(3) SEPs are patents that protect technology that is incorporated in a standard. SEPs are ‘essential’ in the sense that implementation of the standard requires use of the inventions covered by SEPs. The success of a standard depends on its wide implementation and as such every stakeholder should be allowed to use a standard. To ensure wide implementation and accessibility of standards, standard development organisations demand the SEP holders that participate in standard development to commit to license those patents on FRAND terms and conditions to implementers that chose to use the standard. The FRAND commitment is a voluntary contractual commitment given by the SEP holder for the benefit of third parties, and it should be respected as such also by subsequent SEP holders. This Regulation should apply to patents that arin force in one or more Member States that have been declared to be 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.
Amendment 125 #
Proposal for a regulation
Recital 3 a (new)
Recital 3 a (new)
(3a) The key role of Standards Development Organisations (SDOs) in developing and defining technical standards for interoperable technologies should be strengthened. The global and collaborative effort of increasing transparency of SEPs should be reinforced not only through FRAND licensing obligations, but also thanks to an efficient cooperation between SDOs and the competent patent offices, so that the declaration of standards has a maximum level of legal certainty, with robust essentiality checks from the start of the assessment chain.
Amendment 130 #
Proposal for a regulation
Recital 4
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 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.
Amendment 136 #
Proposal for a regulation
Recital 7
Recital 7
(7) Licensing on FRAND terms and conditions includes licensing royalty-free. Given that most issues arise with royalty- bearing licensing policies, this Regulation does not apply to royalty-free licensing.
Amendment 137 #
Proposal for a regulation
Recital 7 a (new)
Recital 7 a (new)
(7a) Because royalty-free and open standards are key in the development of our digital society - including the development of open software - , prevent vendor lock-in and other barriers to interoperability, promote choice between vendors and technology solutions, ensure full market competition and innovation, this regulation should apply to such standards, while not discouraging SEP holders to innovate and participate in the open collaborative standards development.
Amendment 147 #
Proposal for a regulation
Recital 13 a (new)
Recital 13 a (new)
(13a) The register and the electronic database should serve as primary reference points for users, providing easily accessible and information about SEPs free of charge. The information made accessible should not be subject to licensing terms, so that it can be used freely. The register administered by the competence centre should offer a high level of legal certainty and should guarantee easy access to members of the public, so that it becomes a reference in the field in the near future.
Amendment 148 #
Proposal for a regulation
Recital 13 b (new)
Recital 13 b (new)
(13b) The rules of coexistence between the register administered by the EUIPO competence centre and the other SEPs registers should be clarified by the Commission in its evaluation exercise.
Amendment 155 #
Proposal for a regulation
Recital 16
Recital 16
(16) SEP holders should have the opportunity to first inform the competence centre of the publication of the standard or the aggregate royalty which they have agreed upon among themselves. Except for those use cases of standards for which the Commission establishes that there are well established and broadly well-functioning licensing practices of SEPs, the competence centre may assist the parties in the relevant aggregate royalty determination. In this context, if there is no agreement on an aggregate royalty among SEP holders, certain SEP holders may request the competence centre to appoint a panel of conciliators to assist the SEP holders willing to participate in the process in determining an aggregate royalty for the SEPs covering the relevant standard. In this case, the role of the panel of conciliators would be to facilitate the decision-making by the participating SEP holders without making any recommendation for an aggregate royalty. Finally, it is important to ensure that there is a third independent party, an expert, that could recommend an aggregate royalty. Therefore, SEP holders and/or implementers should be able to request the competence centre for an expert opinion on an aggregate royalty. When such a request is made, the competence centre should appoint a panel of conciliators and administer a process in which all interested stakeholders are invited to participate. After receiving information from all of the participants, the panel should provide a non-binding expert opinion for an aggregate royalty. The expert opinion on the aggregate royalty should contain a non- confidential analysis of the expected impact of the aggregate royalty on the SEP holders and the stakeholders in the value chain. Important in this respect would be to consider factors such as, efficiency of SEP licensing, including insights from any customary rules or practices for licensing of intellectual property in the value chain and cross-licensing, and impact on incentives to innovate of SEP holders and different stakeholders in the value chain.
Amendment 160 #
Proposal for a regulation
Recital 20
Recital 20
Amendment 181 #
Proposal for a regulation
Recital 27 a (new)
Recital 27 a (new)
(27a) The role of patent pools, including those created by SEP implementers, should be evaluated by the Commission, in order to assess their benefit once this Regulation is in place, notably in terms of their incidence on competitiveness on the EU market.
Amendment 206 #
Proposal for a regulation
Recital 36
Recital 36
(36) When the parties enter into the FRAND determination, they should select a panel of conciliators for the FRAND determination from the roster. In case of disagreement, the competence centre would select the members of the panel of conciliators. The FRAND determination should be concluded within 9 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.
Amendment 210 #
Proposal for a regulation
Recital 38
Recital 38
(38) The panel of conciliators should examine the parties’ submissions and suggestions for the determination of FRAND terms and conditions, and consider the relevant negotiation steps, among other relevant circumstances. The panel of conciliators, upon its own initiative or the request of a party, should be able to require the parties to submit evidence it deems necessary for the fulfilment of its task. It should also be able to examine publicly available information and the competence centre’s register and reports of other FRAND determinations, as well as non-confidential documents and information produced by or submitted to the competence centre.
Amendment 213 #
Proposal for a regulation
Recital 39
Recital 39
(39) If a party fails to engage in the FRAND determination after the panel of conciliator s has been appointed, the other party may request the termination or may request that the conciliatorpanel issues a recommendation for a FRAND determination on the basis of the information it was able to assess.
Amendment 214 #
Proposal for a regulation
Recital 40
Recital 40
(40) If a party initiates a procedure in a jurisdiction outside the Union resulting in legally binding and enforceable decisions regarding the same standard that is subject to FRAND determination and its implementation, or including SEPs from the same patent family as SEPs subject to FRAND determination and involving one or more of the parties to the FRAND determination as a party; before or during of the FRAND determination by a party, the panel of conciliators, or where he/she has not been appointed has not been established, the competence centre, should be able to terminate the procedure upon the request of the other party.
Amendment 218 #
Proposal for a regulation
Recital 41
Recital 41
(41) At the conclusion of the procedure, the panel of conciliators should make a proposal recommending FRAND terms and conditions. Either party should have the option to accept or reject the proposal. If the parties do not settle and/or do not accept its proposal, the panel of conciliators should draft a report of the FRAND determination. The report would have a confidential and a non-confidential version. The non- confidential version of the report should contain the proposal for FRAND terms and conditions and the methodology used and should be provided to the competence centre for publication in order to inform any subsequent FRAND determination between the parties and other stakeholders involved in similar negotiations. The report would thus have a dual purpose to encourage the parties to settle and to provide transparency as to the process and the recommended FRAND terms in cases of disagreement.
Amendment 239 #
Proposal for a regulation
Article 1 – paragraph 2 – introductory part
Article 1 – paragraph 2 – introductory part
2. This Regulation shall apply to patents that are in force in one or more Member States and have been declared 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,
Amendment 244 #
Proposal for a regulation
Article 1 – paragraph 2 – point a
Article 1 – paragraph 2 – point a
(a) before or after the entry into force of this Regulation, with the exceptions provided in paragraph 3;
Amendment 248 #
Proposal for a regulation
Article 1 – paragraph 2 – point b
Article 1 – paragraph 2 – point b
Amendment 262 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
(7) ‘implementer’ means a natural or legal person that implements, or intends to implement, a standard in a product, process, service or system on the EU single market;
Amendment 277 #
Proposal for a regulation
Article -3 (new)
Article -3 (new)
Article-3 Composition of the competence centre The competence centre shall be composed of independent experts having proven experience in the patent field. The independence of these experts shall be verified by the Management Board of the European Patent Office before they take office and any time deemed necessary by the during the performance of their tasks.
Amendment 278 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. The tasks under this Regulation shall be performed by a competence centre established within the EUIPO with the necessary human and financial resources and in close cooperation with the European Patent Office, national patent offices and standards development organisations.
Amendment 294 #
Proposal for a regulation
Article 4 – paragraph 3 – point h
Article 4 – paragraph 3 – point h
(h) the existence of any public standard terms and conditions, including SEP holder’s royalty, royalty-free and discount policies;
Amendment 306 #
Proposal for a regulation
Article 5 – paragraph 2 – point b
Article 5 – paragraph 2 – point b
(b) public standard terms and conditions, including SEP holder’s royalty, royalty-free and discount policies pursuant to Article 7, first paragraph, point (b), if available;
Amendment 318 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Access to the information pursuant to paragraph (2), points (f), (h), (i), (j) and (k) shall be free by principle. It may be subject to the payment of a fee on a case- by-case basis. The information made accessible shall not be subject to licensing terms, so that it can be used freely.
Amendment 321 #
Proposal for a regulation
Article 5 – paragraph 4
Article 5 – paragraph 4
4. However, public authorities, including courts, shall have full access to the information in the database referred to in paragraph (2) free of charge subject to registration with the competence centre.
Amendment 329 #
Proposal for a regulation
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
The competence centre shall liaise with the relevant patent offices and standards development organisations to verify the robustness of the information provided by the SEP holder.
Amendment 332 #
Proposal for a regulation
Article 8 – paragraph 1 – point a
Article 8 – paragraph 1 – point a
(a) a final decision on essentiality for a registered SEP made by a competent court of a Member State within 63 months from the publication of such decision.
Amendment 341 #
Proposal for a regulation
Article 9 – paragraph 1 – point a a (new)
Article 9 – paragraph 1 – point a a (new)
(aa) standards identified as ‘open standards’;
Amendment 348 #
Proposal for a regulation
Article 9 – paragraph 1 – point h
Article 9 – paragraph 1 – point h
(h) royalties, royalty-free and discount policyies per product category;
Amendment 353 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The competence centre shall store in the database all the data provided by stakeholders, including all relevant data to be provided by the standards development organisations, as well as opinions and reports of evaluators and conciliators.
Amendment 357 #
Proposal for a regulation
Article 13 – paragraph 2 – point c a (new)
Article 13 – paragraph 2 – point c a (new)
(ca) informing the public and all interested parties of the existence and quality of standards, with easily accessible research tools and reasonably understandable search results;
Amendment 358 #
Proposal for a regulation
Article 13 – paragraph 3
Article 13 – paragraph 3
3. The competence centre shall include in the database case-law from competent courts of Member States, from third country jurisdictions andfrom WIPO and other alternative dispute resolution bodies.
Amendment 359 #
Proposal for a regulation
Article 13 a (new)
Article 13 a (new)
Article13a Enhanced cooperation with the European Patent Office, national patent offices and Standards Development Organisations In performing its tasks under this Regulation, the competence centre shall proceed to regular checks with the European Patent Office, national patent offices and Standards Development Organisations in order to establish a maximum level of legal certainty. The format and frequency of such verification procedures shall be determined by delegated acts.
Amendment 370 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Holders and implementers of SEPs in force in one or more Member States related to a standard identified under Article 1(4) for which FRAND commitments have been made may jointly notify the competence centre of the aggregate royalty for the SEPs covering a standard.
Amendment 371 #
Proposal for a regulation
Article 15 – paragraph 2 – point c
Article 15 – paragraph 2 – point c
(c) the names of the SEP holders and implementers making the notification referred to in paragraph (1);
Amendment 372 #
Proposal for a regulation
Article 15 – paragraph 2 – point f
Article 15 – paragraph 2 – point f
(f) the implementations known to the SEP holders and/or implementers referred to in point (c);
Amendment 376 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. In case of revision of the aggregate royalty, the SEP holders and implementers shall notify the competence centre about the revised aggregate royalty and the reasons for the revision.
Amendment 380 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Holders of SEPs in force in one or more Member States representing at least 20 % of all SEPs of a standard, or implementers seeking to implement the standard, may request the competence centre to appoint a conciliator or a panel of conciliators according to Article 39, from the roster of conciliators to mediate the discussions for a joint submission of an aggregate royalty.
Amendment 382 #
Proposal for a regulation
Article 17 – paragraph 5
Article 17 – paragraph 5
5. The competence centre shall appoint a conciliator from the roster of conciliators and inform all SEP holders and implementers that expressed interest to participate in the process.
Amendment 384 #
Proposal for a regulation
Article 17 – paragraph 6
Article 17 – paragraph 6
6. SEP holders and implementers that submit to the conciliator confidential information shall provide 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.
Amendment 387 #
Proposal for a regulation
Article 17 – paragraph 7
Article 17 – paragraph 7
7. Where the SEP holders or implementers fail to make a joint notification within 6 months from the appointment of the conciliator, the conciliator shall terminate the process.
Amendment 447 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
1. A SEP that is not registered within 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. The effect on the enforcement of the concerned SEP shall be determined by the Unified Patent Court.
Amendment 448 #
Proposal for a regulation
Article 24 – paragraph 2
Article 24 – paragraph 2
Amendment 449 #
Proposal for a regulation
Article 24 – paragraph 3
Article 24 – paragraph 3
Amendment 451 #
Proposal for a regulation
Article 24 – paragraph 4
Article 24 – paragraph 4
Amendment 453 #
Proposal for a regulation
Article 24 – paragraph 5
Article 24 – paragraph 5
Amendment 555 #
Proposal for a regulation
Article 38 – paragraph 2
Article 38 – paragraph 2
2. The responding party shall notify the competence centre within 15 days from the receipt of the notification of the request for FRAND determination from the competence centre in accordance with paragraph (1). The response shall indicate whether the responding party agrees to the FRAND determination and whether it commits to comply with its outcome.
Amendment 556 #
Proposal for a regulation
Article 38 – paragraph 3 – introductory part
Article 38 – paragraph 3 – introductory part
3. Where the responding party does not reply within the time limit laid down in paragraph (2) or informs the competence centre of its decision not to participate in the FRAND determination, or not to commit to comply with the outcome, the following shall apply:
Amendment 562 #
Proposal for a regulation
Article 38 – paragraph 3 – point a
Article 38 – paragraph 3 – point a
(a) the competence centre shall notify the requesting party thereof and invite it to indicate within seven days whether it requests the continuation of the FRAND determination and whether it commits to comply with the outcome of the FRAND determination;
Amendment 563 #
Proposal for a regulation
Article 38 – paragraph 3 – point a
Article 38 – paragraph 3 – point a
(a) the competence centre shall notify the requesting party thereof and invite it to indicate within seven days whether it requests the continuation of the FRAND determination and whether it commits to comply with the outcome of the FRAND determination;
Amendment 571 #
Proposal for a regulation
Article 38 – paragraph 4 – introductory part
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:
Amendment 577 #
Proposal for a regulation
Article 38 – paragraph 4 – point a
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;
Amendment 581 #
Proposal for a regulation
Article 38 – paragraph 4 – point b
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.
Amendment 590 #
Proposal for a regulation
Article 38 – paragraph 5
Article 38 – paragraph 5
Amendment 594 #
Proposal for a regulation
Article 38 – paragraph 6
Article 38 – paragraph 6
6. The FRAND determination shall concern a global SEP licence on patents in force in one or more Member States, 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.
Amendment 596 #
Proposal for a regulation
Article 39 – paragraph 1
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 appoint a panel of 3 conciliators 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. The selection of conciliators shall begin by each party selecting one conciliator, and the two selected conciliators selecting a third conciliator. If a party wishes to nominate a qualified conciliator outside the roster of conciliators referred to in Article 27(2), such a conciliator may be selected providing she/he meets the criteria for qualification of conciliators established by the competence centre. If one or both parties to the FRAND determination fails to select a conciliator within the specified time period, the selection(s) shall be made by the competence centre.
Amendment 600 #
Proposal for a regulation
Article 39 – paragraph 2
Article 39 – paragraph 2
2. The parties may agree to have a single conciliator conduct the FRAND determination, in which case the competence centre shall propose at least 3 candidates from the roster of conciliators referred to in Article 27(2) and the parties shall select one of the proposed candidates as a conciliator for the FRAND determination. Alternatively, the parties may jointly agree to a conciliator that is not on the roster and such conciliator shall be appointed by the competence centre providing she/he meets the criteria for qualification of conciliators established by the competence centre. If the parties do not agree on a conciliator, the competence centre shall select one candidate from the roster of conciliators referred to in Article 27(2).
Amendment 604 #
Proposal for a regulation
Article 40 – paragraph 1
Article 40 – paragraph 1
1. The selected candidates shall communicate to the competence centre the acceptance to take up the task of a conciliator for the FRAND determination, which shall notify the communication of acceptance to the parties.
Amendment 605 #
Proposal for a regulation
Article 40 – paragraph 2
Article 40 – paragraph 2
2. The day following the notification of the acceptance to the parties, the panel of conciliators is appointed, and the competence centre shall refer the case to him/herthe panel.
Amendment 607 #
Proposal for a regulation
Article 42 – paragraph 1
Article 42 – paragraph 1
1. After the case is referred to the panel of conciliators in accordance with Article 40(2), the/she panel shall examine whether the request contains the information required under Article 36 in accordance with the Rules of procedure.
Amendment 611 #
Proposal for a regulation
Article 42 – paragraph 2
Article 42 – paragraph 2
2. He/sheThe panel shall communicate to the parties or the party requesting the continuation of the FRAND determination the conduct as well as the schedule of procedure.
Amendment 613 #
Proposal for a regulation
Article 43 – paragraph 1
Article 43 – paragraph 1
The panel of conciliators shall invite each party to file written submissions setting out its arguments concerning the determination of the applicable FRAND terms and conditions, including supporting documentation and evidence, and set appropriate time limits.
Amendment 614 #
Proposal for a regulation
Article 44 – paragraph 1
Article 44 – paragraph 1
1. A party may submit an objection stating that the panel of conciliators 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 one month following the first written submission. The other party shall be given opportunity to submit its observations.
Amendment 618 #
Proposal for a regulation
Article 44 – paragraph 2
Article 44 – paragraph 2
2. The panel of conciliators shall decide on the objection and either reject it as unfounded before considering the merits of the case or join it to the examination of the merits of the FRAND determination. If the panel of conciliators overrules the objection or joins it to the examination of the merits of the determination of FRAND terms and conditions, it shall resume consideration of the determination of FRAND terms and conditions.
Amendment 619 #
Proposal for a regulation
Article 44 – paragraph 3
Article 44 – paragraph 3
3. If the panel of conciliators decides that the objection is founded, it shall terminate the FRAND determination and shall draw up a report stating the reasons of the decision.
Amendment 621 #
Proposal for a regulation
Article 45 – paragraph 1
Article 45 – paragraph 1
1. The panel of conciliators shall assist the parties in an independent and impartial manner in their endeavour to reach a determination of FRAND terms and conditions.
Amendment 625 #
Proposal for a regulation
Article 45 – paragraph 2
Article 45 – paragraph 2
2. The panel of conciliators may invite the parties or the party requesting the continuation of the FRAND determination to meet with him/herthem or may communicate with him/her orally or in writing.
Amendment 630 #
Proposal for a regulation
Article 45 – paragraph 3
Article 45 – paragraph 3
3. The parties or the party requesting the continuation of the FRAND determination shall cooperate in good faith with the panel of conciliators and, in particular, shall attend the meetings, comply with his/herthe panel’s requests to submit all relevant documents, information and explanations as well as use the means at their disposal to enable the conciliatorpanel to hear witnesses and experts whom the conciliatorpanel might call.
Amendment 637 #
Proposal for a regulation
Article 46 – paragraph 1 – point a
Article 46 – paragraph 1 – point a
(a) fails to comply with any request of the panel of conciliators, Rules of procedure or schedule of procedure referred to in Article 42(2),
Amendment 642 #
Proposal for a regulation
Article 46 – paragraph 1 – concluding part
Article 46 – paragraph 1 – concluding part
the panel of conciliators shall inform both parties thereof.
Amendment 643 #
Proposal for a regulation
Article 46 – paragraph 2 – introductory part
Article 46 – paragraph 2 – introductory part
2. Having received the notification of the panel of conciliators about the failure of the concerned party, the complying party may ask the conciliatorpanel to take one of the following actions:
Amendment 649 #
Proposal for a regulation
Article 46 – paragraph 3
Article 46 – paragraph 3
3. If the party requesting the continuation of the FRAND determination fails to comply with any request of the panel of conciliators or in any other way fails to comply with a requirement relating to the FRAND determination, the conciliatorpanel shall terminate the procedure.
Amendment 651 #
Proposal for a regulation
Article 47 – paragraph 2
Article 47 – paragraph 2
2. Where a parallel proceeding relating to the concerned SEP has been initiated before or during the FRAND determination by a party , the panel of conciliators, or where he/she the panel has not been appointed, the competence centre, shall terminate the FRAND determination upon the request of any other party.
Amendment 655 #
Proposal for a regulation
Article 48 – paragraph 1
Article 48 – paragraph 1
1. Without prejudice to the protection of confidentiality in accordance with Article 54(3) at any time during the FRAND determination, at the request of a party or on its own motion, the panel of conciliators may request the production of documents or other evidence.
Amendment 657 #
Proposal for a regulation
Article 48 – paragraph 2
Article 48 – paragraph 2
2. The panel of conciliators may examine publicly available information and the competence centre’s register and confidential and non-confidential reports of other FRAND determinations, as well as non-confidential documents and information produced by or submitted to the competence centre.
Amendment 658 #
Proposal for a regulation
Article 49
Article 49
The panel of conciliators may hear witnesses and experts requested by either party provided that the evidence is necessary for the FRAND determination and that there is time to consider such evidence.
Amendment 661 #
Proposal for a regulation
Article 50 – paragraph 1
Article 50 – paragraph 1
1. At any time during the FRAND determination, the panel of conciliators or a party on its own motion or by invitation of the conciliatorpanel may submit proposals for a determination of FRAND terms and conditions
Amendment 665 #
Proposal for a regulation
Article 50 – paragraph 3
Article 50 – paragraph 3
3. When submitting suggestions for FRAND terms and conditions, the panel of conciliators shall take into account the impact of the determination FRAND terms and conditions on the value chain and on the incentives to innovation of both the SEP holder and the stakeholders in the relevant value chain. To that end, the panel of conciliators may rely on the expert opinion referred to in Article 18 or, in case of absence of such an opinion request additional information and hear experts or stakeholders.
Amendment 668 #
Proposal for a regulation
Article 51 – title
Article 51 – title
Recommendation of a determination of FRAND terms and conditions by the panel of conciliators
Amendment 669 #
Proposal for a regulation
Article 51 – paragraph 1
Article 51 – paragraph 1
The panel of conciliators shall notify the parties a written recommendation of a determination of FRAND terms and conditions at the latest 5 months before the time limit referred to in Article 37.
Amendment 672 #
Proposal for a regulation
Article 52 – paragraph 1
Article 52 – paragraph 1
Following the notification of the written recommendation of FRAND terms and conditions by the panel of conciliators, either party shall submit a detailed and reasoned proposal for a determination of FRAND terms and conditions. If a party has already submitted a proposal for the determination of FRAND terms and conditions, revised versions shall be submitted, if necessary, taking into account the recommendation of the conciliatorpanel.
Amendment 673 #
Proposal for a regulation
Article 53 – paragraph 1
Article 53 – paragraph 1
If the panel of conciliators considers it necessary or if a party so requests, an oral hearing shall be held within 20 days after the submission of reasoned proposals for determination of FRAND terms and conditions.
Amendment 676 #
Proposal for a regulation
Article 54 – paragraph 1
Article 54 – paragraph 1
1. When the panel of conciliators receives information for the purposes of FRAND determination from a party, it shall disclose it to the other party so that the other party has the opportunity to present any explanation.
Amendment 677 #
Proposal for a regulation
Article 54 – paragraph 1
Article 54 – paragraph 1
1. When the panel of conciliators receives information for the purposes of FRAND determination from a party, it shall disclose it to the other party so that the other party has the opportunity to present any explanation.
Amendment 678 #
Proposal for a regulation
Article 54 – paragraph 2
Article 54 – paragraph 2
2. A party may request the panel of conciliators that specific information in a submitted document is kept confidential. Rules governing the protection of confidential information shall be established such that a party’s confidential information may be shared with outside counsel and experts for the other party, provided appropriate undertakings are signed by such experts and outside counsel to ensure that the information will be maintained as confidential.
Amendment 680 #
Proposal for a regulation
Article 54 – paragraph 3
Article 54 – paragraph 3
3. When a party requests the information in a document it had submitted to be kept confidential, the panel of conciliators shall not disclose that information only to the other party’s outside counsel and outside experts who have signed an appropriate confidentiality obligation. The party invoking confidentiality shall also provide 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. This non-confidential version shall be disclosed to the other party.
Amendment 682 #
Proposal for a regulation
Article 55 – title
Article 55 – title
Reasoned proposal for a determination of FRAND terms and conditions by the panel of conciliators
Amendment 687 #
Proposal for a regulation
Article 55 – paragraph 1
Article 55 – paragraph 1
1. At the latest 45 days before the end of the time limit referred to in Article 37, the panel of conciliators 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.
Amendment 690 #
Proposal for a regulation
Article 55 – paragraph 2
Article 55 – paragraph 2
2. Either party may submit observations to the proposal and suggest amendments to the proposal by the panel of conciliators, 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.
Amendment 698 #
Proposal for a regulation
Article 56 – paragraph 1 – point b
Article 56 – paragraph 1 – point b
(b) a written declaration is signed by the parties accepting the reasoned proposal for a determination of FRAND terms and conditions by the panel of conciliators referred to in Article 55;
Amendment 700 #
Proposal for a regulation
Article 56 – paragraph 1 – point c
Article 56 – paragraph 1 – point c
(c) a written declaration is made by a party not to accept the reasoned proposal of a determination of FRAND terms and conditions by the panel of conciliators referred to in Article 55;
Amendment 704 #
Proposal for a regulation
Article 56 – paragraph 1 – point d
Article 56 – paragraph 1 – point d
(d) a party has not submitted a reply to the reasoned proposal of a determination of FRAND terms and conditions by the panel of conciliators referred to in Article 55.
Amendment 715 #
Proposal for a regulation
Article 57 – paragraph 1
Article 57 – paragraph 1
1. The panel of conciliators shall provide the parties with a written report following the termination of the FRAND determination in cases listed in Article 56(1), point (c) and Article 56(1), point (d).
Amendment 721 #
Proposal for a regulation
Article 57 – paragraph 2 – point d
Article 57 – paragraph 2 – point d
(d) a non-confidential methodology and the assessment of the determination of FRAND terms and conditions by theeach conciliator on the panel of conciliators.
Amendment 763 #
Proposal for a regulation
Article 67 – paragraph 2
Article 67 – paragraph 2
2. The power to adopt a delegated act referred to in Articles 1(4), 4(5), 13.a (new) and 66(4) shall be conferred on the Commission for an indeterminate period of time from the date of entry into force of this Regulation.
Amendment 765 #
Proposal for a regulation
Article 67 – paragraph 3
Article 67 – paragraph 3
3. The delegation of power referred to in Articles 1(4), 4(5), 13.a (new) and 66(4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
Amendment 767 #
Proposal for a regulation
Article 67 – paragraph 6
Article 67 – paragraph 6
6. A delegated act adopted pursuant to Articles 1(4), 4(5), 13.a (new) and 66(4) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or of the Council.
Amendment 769 #
Proposal for a regulation
Article 70 – paragraph 1
Article 70 – paragraph 1
1. By [OJ: please insert the date = 53 years from entry into force of this regulation] the Commission shall evaluate the effectiveness and efficiency of the SEP registration and the essentiality check system.
Amendment 773 #
Proposal for a regulation
Article 70 – paragraph 2
Article 70 – paragraph 2
2. By [OJ: please insert the date = 85 years from entry into force of this regulation], and every fivthree years thereafter, the Commission shall evaluate the implementation of this Regulation. The evaluation shall assess the operation of this Regulation, in particular the impact, effectiveness and efficiency of the competence centre and its working methods.