[ParlTrack]

Proposal for a regulation
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 in force in the European Union that 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.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 5

(5) Whereas transparency in SEP licensing should stimulate a balanced investment environment, along entire Single Market value chains, in particular for emerging technology use cases underpinning Union objectives of green, digital and resilient growth, the Regulation should also apply to standards or parts thereof, published before its entry into force where inefficiencies in the licensing of the relevant SEPs severely distort the functioning of the internal market. This is particularly relevant for market failures hindering investment in the Single Market, the roll-out of innovative technologies or the development of nascent technologies and emerging use cases. Therefore, taking into account those criteria, the Commission should determine by a delegated act the standards or parts thereof that have been published before the entry into force of this Regulation and the relevant use cases, for which SEPs can be registered.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 7 a (new)

(7 a) 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 open standards development.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 8

(8) In view of the global character of SEP licensing, references to aggregate royalty and FRAND determination may refer to global aggregate royalties and global FRAND determinations, or as otherwise agreed by the notifying stakeholders or the parties to the proceedings.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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, the competence centre should offer assistance to SMEs. 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. The electronic register and the database should serve as primary reference points for users, providing easily accessible information about SEPs free of charge. The information made accessible should not be subject to licensing terms, so that it can be used freely.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 15

(15) Knowledge of the potential total royalty for all SEPs covering a standard (aggregate royalty) applicable to the implementations of that standard is important for the assessment of the royalty amount for a product, which plays a significant role for the manufacturer’s cost determinations. It also helps SEP holder to plan expected return on investment. The publication of the expected aggregate royalty and the standard licensing terms and conditions for a particular standard would facilitate SEP licensing and reduce the cost of SEP licensing. Thus, it is necessary to make public the information on total royalty rates (aggregate royalty) and the standard FRAND terms and conditions of licensing.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
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 conciliator 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 conciliator 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.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Recital 25

(25) These essentiality checks should be conducted on a sampling from SEP portfolios to ensure that the sample is capable of producing statistically valid results. The results of the sampled essentiality checks should determine the ratio of positively checked SEPs from all the SEPs registered by each SEP holder. ~~The essentiality rate should be updated annually.~~

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 26

(26) SEP holders ~~or implementers~~ may also designate annually up to 100 registered SEPs for essentiality checks. If the pre-selected SEPs are confirmed essential, the SEP holders may use this information in negotiations and as evidence in courts, without prejudicing the right of an implementer to challenge the essentiality of a registered SEP in court. The selected SEPs would have no bearing on the sampling process as the sample should be selected from all registered SEPs of each SEP holder. If a preselected SEP and a SEP selected for the sample set are the same, only one essentiality check should be done. Essentiality checks should not be repeated on SEPs from the same patent family.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 30

(30) It is necessary to ensure that the registration and ensuing obligations provided for in this Regulation are not circumvented by removing a SEP from the register. When an evaluator finds a claimed SEP non-essential, only the SEP holder can request its removal from the register and only after the ~~annual~~ sampling process has been completed and the proportion of true SEPs from the sample has been established and published.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 34

(34) Each party may choose whether it wishes to engage in the procedure and commit to comply with its outcome. Where a party does not reply to the FRAND determination request or does not commit to comply with the outcome of the FRAND determination, the other party should be able to request either the termination or the unilateral continuation of the FRAND determination. Such a party should not be exposed to litigation during the time of the FRAND determination. At the same time, the FRAND determination should be an effective procedure for the parties to reach agreement before litigation or to obtain a determination to be used in further proceedings. Therefore, the party or parties that commit to complying with the outcome of the FRAND determination and duly engage in the procedure should be able to benefit from its completion.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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, eNo FRAND determination process should prevents access to the courts. Either party should be able to request a provisional injunctionof 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, 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

Francisco GUERREIRO

Proposal for a regulation
Recital 37

(37) Upon appointment, the conciliation centre should refer the FRAND determination to the conciliator, who should examine whether the request contains the necessary information, and communicate the schedule of procedure to the parties ~~or the party requesting the continuations of the FRAND determination~~.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
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 conciliator, 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~~any party.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 44

(44) When ~~determining the aggregate royalties and~~ making FRAND determinations the conciliators should take into account in particular any Union acquis and judgments of the Court of Justice pertaining to SEPs as well as guidance issued under this Regulation, the Horizontal Guidelines42 and the Commission’s 2017 Communication ‘Setting out the EU approach to Standard Essential Patents’.43 Furthermore, the conciliators should consider any expert opinion on ~~the aggregate royalty~~FRAND determination, or in the absence thereof, should request information from the parties before it makes its final proposals well as guidance issued under this Regulation, as well as guidance issued under this Regulation. __________________ 42 Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ C 11, 14.01.2011, pp. 1 (currently under review) 43 Communication on Setting out the EU approach to Standard Essential Patents, COM(2017)712 final, 29.11.2017.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Recital 45 a (new)

(45 a) In addition, it is important to ensure that the new EU rules and their implementation do not undermine the EU innovation technological leadership.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

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 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~~,

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
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 European Union market;

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

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

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

~~(g) information on aggregate royalties pursuant to Articles 15, 16 and 17;~~deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

~~(h) expert opinions referred to in Article 18;~~deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 13 – paragraph 2 – point c a (new)

(c a) informing the public and any interested parties of the existence of standards, with easily accessible research tools;

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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 forArticle 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 est~~andard; (f) SEP holders referred to in point (c); (g) unless the notifying parties specify~~imated percentage of SEPs the implementations known to thate the global aggregate royalty is not global; (h) royalty referred to in paragraph (1) is valid. 3. 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) standard becomes known to them. 4. publish in the database the information provided under paragraph (2)., any period for which the aggregate The notification referred to in the publication of a standard by a new implementation of the The competence centre shall

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 16

Revision of aggregate royalty 1. aggregate royalty, the SEP holders shall notify the competence centre about the revised aggregate royalty and the reasons for the revision. 2. publish in the database the initial aggregate royalty, the revised aggregate royalty and the reasons for the revision in the register.Article 16 deleted In case of revision of the The competence centre shall

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 17

Process for facilitating agreements on aggregate royalty determinations 1. more Member States representing at least 20 % 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. 2. later than 90 days following the publication of the standard or no later than 120 days following the firArticle 17 deleted Holders of SEPs in force in one or Such a request shall be made no The request shal~~e of new implementation on the Union market for implementations not known at~~l contain the the commercial name of the the ~~tim~~date of publication of the standard. 3. following information: (a) standard; (b) technical specification or the date of the first sale of new implementation on the Union market; (c) SEP holders referred to in paragraph (1); (d) the SEP holders supporting the request; (e) they own individually and collectively from all potential SEPs claimed for the standard. 4. the SEP holders referred to in paragraph (3), point (d) and request them to express their interest in participating in the process and to providelatest the implementations known to the the names and contact details of their estimated percentage of SEPs from all SEPs for the standard. 5. appoint a conciliator from the roster of conciliators and inform all SEP holders that expressed interest to participate in the process. 6. 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. 7. Where the SEP holders fail to make a joint notification within 6 months from the appointment of the conciliator, the conciliator shall terminate the process. 8. notification, the procedure set out in Article 15(1), (2) and (4) shall apply.The competence centre shall notify The competence centre shall SEP holders that submit to the If the contributors agree on a joint

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 18

~~[...]~~deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 19 – paragraph 1 – introductory part

1. The competence centre shall create an entry in the register for a standard for which FRAND commitments have been made within 60 days from ~~the earliest of the following events:~~publication by the competence centre of the standard and related information referred to in Article 14(7)

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

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

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

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

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

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Article 29 – paragraph 6

6. Any implementer may voluntarily propose annually up to 100 registered SEPs from different patent families to be checked for essentiality with regard to each specific standard for which SEP registrations have been made.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
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:~~the competence centre shall terminate the FRAND determination.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
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;deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 38 – paragraph 3 – point b

(b) where the requesting party requests the continuation of the FRAND determination and commits to its outcome, the FRAND determination shall continue, but Article 34(1) shall not apply to the court proceedings for the requesting party in relation to the same subject matter.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 38 – paragraph 3 – point c

(c) where the requesting party fails to request, within the time limit referred to in subparagraph (a), the continuation of the FRAND determination, the competence centre shall terminate the FRAND determination.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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 ishall contin~~gent upon the commitment of~~ue and, provided the re~~questing party to comply with~~ is mutual agreement, the outcome of the FRAND determination~~, the following shall apply:~~ may be finding for both parties;

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

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.deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Article 42 – paragraph 2

2. He/she shall communicate to the parties ~~or the party requesting the continuation of the FRAND determination~~ the conduct as well as the schedule of procedure.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Article 44 – paragraph 2

2. The conciliator 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 conciliator 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 conditionsmay invite the parties to meet with him/her or may communicate with him/her orally or in writing.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Article 45 – paragraph 4

~~4. The responding party may join the FRAND determination at any moment before its termination.~~deleted

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 45 – paragraph 5

5. At any stage of the procedure upon request by both parties, ~~or the party requesting the continuation of the FRAND determination, as applicable,~~ the conciliator shall terminate the FRAND determination.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Article 47 – paragraph 2

2. Where a parallel proceeding has been initiated before or during the FRAND determination by a party, the conciliator, or where he/she has not been appointed, the competence centre, shall terminate the FRAND determination upon the request of any ~~other~~ party.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 50 – paragraph 3

3. When submitting suggestions for FRAND terms and conditions, the conciliator 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 conciliator 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.~~

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Article 61 – paragraph 1

1. The competence centre shall offer training and support on SEP related matters for micro, small and medium-size enterprises free of charge, whether they are SEP holders or implementers. The competence centre will, on a regular basis, proactively seek input from micro, small and medium-size enterprises on what training and support would be most helpful.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 61 – paragraph 2

2. The competence centre may commission studies~~, if it considers it necessary,~~ to assist micro, small and medium-size enterprises on SEP related matters. The competence centre will, on a regular basis, proactively seek the input of micro, small and medium-size enterprises to inform its own decisions on which studies would be most helpful.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

Proposal for a regulation
Article 61 a (new)

Article 61a Safe harbour for micro, small and medium-size enterprises 1. The competence centre shall offer micro, small and medium-size enterprises in the EU the opportunity to register their willingness to engage in mediation under the World Intellectual Property Organisation (WIPO) Arbitration and Mediation system for SEP-related disputes involving SMEs. SEP holders shall not initiate any legal action to enforce a SEP against micro, small and medium-sized enterprises in the EU having registered their willingness to engage in such mediation system. 2.The competence centre shall offer the possibility to micro, small and medium- size enterprises in the EU to make an commitment to accept a licence on FRAND terms and conditions from any SEP holder with a registered SEP. In such case, the relevant SEP holder may not initiate any legal action seeking an injunction if a Member State court.

2023/10/27
Committee: IMCO

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

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

Francisco GUERREIRO

Proposal for a regulation
Article 66

Opening registration for an existing 1. 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 Regulation (‘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 determined in theArticle 66 delegated act in accordance with paragraph (4). The procedures, notification and publication requirements set out in this Regulation apply mutatis mutandis. 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. 3. 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 therestandard Until [OJ: please insert the date = Until [OJ: please insert the date = Where the functioning of, 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. 4. 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]. 5. prejudice to any acts concluded and rights acquired by [OJ: please insert the date = 28 months from entry into force of this regulation].e This article shall apply without

2023/10/27
Committee: IMCO

Activities of Francisco GUERREIRO related to 2023/0133(COD)

Shadow opinions (1)

Amendments (75)

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