EPO not consulted on standard essential patent reform, says president

António Campinos says European Commission’s proposed changes are “ill-suited” to achieving stated goals

António Campinos Shutterstock

The president of the European Patent Office (EPO) has added his voice to the mounting criticism being levelled at the European Commission’s proposals to regulate standard essential patents (SEPs).

António Campinos wrote in a letter dated 18 October to the chair and vice chair of the European Parliament’s Legal Affairs Committee that the EPO was never consulted on the proposed regulation, despite being “well versed in the complex relationship between patents and standards”.

The proposals, published in April, recommend the creation of a register for SEPs and a system to evaluate essentiality of patents. Owners of SEPs are already required to license them on ‘fair, reasonable and non discriminatory’ (FRAND) terms, to prevent the abuse of power. The new regulation would establish a FRAND dispute resolution mechanism and a process for ex-ante determination of aggregate royalty for a standard.

Campinos noted that for more than two decades, the EPO has been at the forefront of cooperation with Standards Development Organisations (SDOs), the organisations developing and defining technical standards for interoperable technologies. 

Discussing the proposed register for SEPs, Campinos said that there are structures already in place; for example, the administration of the newly created Unitary Patent (UP) has been entrusted to the EPO instead of creating a new EU agency or entrusting an existing EU agency with no experience in the field of patents.

From this point of view, he said, it is “questionable whether it is opportune to create any new and specific register for SEPs”. 

The EPO’s existing register already has a wealth of information on European patents and is tied to the newly created UP register, Campinos said. These registers are linked to the databases on SEPs operated by major SDOs like ETSI (European Telecommunications Standards Institute) and ITU-T (International Telecommunication Union Telecommunication Standardization Sector).

He pointed out that the UP register contains patent holders’ commitment to license patents on FRAND terms anyway.

He added that the newly formed Unified Patent Court (UPC) and the related Patent Mediation and Arbitration Centre (PMAC) can be used to resolve SEP disputes, such as determining the essentiality of the patent(s) concerned and the appropriate FRAND licensing conditions.

He called for more “in-depth” analysis, believing that the proposed measures may impose “disproportionate regulatory burdens and hamper and delay access to justice”, which could result in legal insecurity, not only for patent holders but also for third parties implementing the standards concerned.

The European Parliament’s Committee on International Trade has recently announced that the evidence gathered by the Commission to support SEP reform is “inconclusive”.

Big hitters from the technology and telecoms world have also expressed concerns, with Nokia calling the proposed measures “deeply flawed”.

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