Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on standard essential patents and amending Regulation (EU)2017/1001
Date: 2023-04-27
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: European Union Intellectual Property Office, European patent, European standard, harmonisation of standards, patent law, patents licence, technical specification, technical standard

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   EUROPEAN COMMISSION  Brussels, 27.4.2023  COM(2023) 232 final 2023/0133 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on standard essential patents and amending Regulation (EU)2017/1001 (Text with EEA relevance) {SEC(2023) 174 final} - {SWD(2023) 123 final} - {SWD(2023) 124 final} - {SWD(2023) 125 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Standardisation is a key contributor to industrial  innovation and competitiveness. Successful 
standards rest on cutting-edge technologies, which require substantial investments in research 
and development. Under the rules of many standards development organisations (SDOs), such 
as  the  ETSI1  and  the  IEEE2,  companies  and  individuals  may  patent  their  technical 
contributions to a standard. Patents that protect technology essential to a standard are known 
as  standard-essential  patents  (SEPs).  Typically,  SDOs  require  that  any  person  or  company 
wishing  to  have  their  patented  technology  included  in  a  standard  commit  to  licensing  the 
relevant  patents  to  others  who  may  wish  to  use  the  standard  (firms  using/implementing  a 
standard are also known as ‘implementers’3). These licences must be granted to implementers 
on  fair,  reasonable  and  non-discriminatory  (FRAND)  terms  and  conditions.  If  the  patent 
holder refuses to make such a commitment, their patented technology cannot be included in 
the standard. 

The  overall  objectives  of  this  proposed  initiative  are  to:  (i)  ensure  that  end  users,  including 
small  businesses and  EU  consumers  benefit  from  products  based  on  the  latest  standardised 
technologies;  (ii)  make  the  EU  attractive  for  standards  innovation;  and  (iii)  encourage  both 
SEP holders and implementers to innovate in the EU, make and sell products in the EU and be 
competitive in non-EU markets. The initiative aims to incentivise participation by European 
firms in the standard development process and the broad implementation of such standardised 
technologies, particularly in IoT industries.  

In  this  context,  the  initiative  seeks  to:  (i)  make  available  detailed  information  on  SEPs  and 
existing FRAND terms and conditions to facilitate licensing negotiations; (ii) raise awareness 
of  SEP  licensing in  the  value  chain  and  (iii)  provide  for  an  alternative  dispute  resolution 
mechanism for setting FRAND terms and conditions. 

The Commission’s 2017 Communication ‘Setting out the EU approach to Standard Essential 
Patents’4, called for a comprehensive and balanced approach to SEP licensing to incentivise 
the contribution of best technology to global standardisation efforts and foster efficient access 
to  standardised  technologies.  The  Commission  acknowledged  the  need  for  increased 
transparency  and  addressed certain  aspects of  FRAND licensing  and SEP enforcement. The 
Commission’s  views  were  supported  by  Council  conclusions  6681/185,  with  the  Council 
stressing the importance of increased transparency. 

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European Telecommunications Standards Institute. 
Institute of Electrical and Electronics Engineers. 
In  certain  cases,  a  SEP  holders  can  be  an  implementer  and  vice  versa  –  in  fact,  many  companies 
participating in standards development are vertically integrated and therefore fall under both categories. 
Thus,  it  is  not  fully  accurate  to  divide  the  world  of  SEPs  into  two  entirely  separate  groups  –  SEP 
holders and implementers. However, for ease of reference in this impact assessment, those terms will be 
used  to  refer  to  companies  that  own  SEPs  (i.e.,  SEP  owner)  and  those  that  implement  SEPs  in  their 
products (i.e., implementer). 
Communication  on  Setting  out  the  EU  approach  to  Standard  Essential  Patents,  COM(2017)712  final, 
29.11.2017. 
Council  conclusions  on  the  enforcement  of  Intellectual  Property  Rights,  as  approved  by  the  Council 
(Internal Market, Industry, Research and Space) at its meeting on 12 March 2018 

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On  10  November  2020,  by  Council  conclusions  12339/206, the  Council  invited  the 
Commission  to  present  proposals  for  future  EU  IP  policy.  The  Council  encouraged  the 
Commission  to  swiftly  present  the  announced  IP  action  plan,  with  initiatives  to  make  IP 
protection  more  effective  and  more  affordable,  especially  for  small  and  medium-sized  EU 
enterprises (‘SMEs’)7, and to promote the effective sharing of IP, in particular critical assets 
such as SEPs, while ensuring adequate and fair compensation for technology developers. 
On  25  November  2020,  the  Commission  published  the  intellectual  property action  plan8, 
where it announced its  goals  of promoting transparency  and predictability in  SEP licensing, 
including  by  improving  the  SEP  licensing  system,  for  the  benefit  of  EU  industry  and 
consumers, and in particular SMEs. The action plan noted increases in SEP licensing disputes 
in  the  automotive  sector  and  the  potential  for  other  IoT  sectors  to  become  subject  of  such 
disputes  as  they  begin  using  connectivity  and  other  standards.  The  plan was  supported  by 
Council  conclusions  of  18  June  20219  and  by  the  European  Parliament  (EP)  in  its 
Resolution10.  The  EP  acknowledged  the  need  for  a  strong,  balanced  and  robust  IPR  system 
and agreed with the Commission’s position that the transparency necessary for fair licensing 
negotiations depends in large part on the availability of information about the existence, scope 
and  essentiality  of  SEPs.  The  EP also  asked  the  Commission  to  provide  more  clarity  on 
various  aspects  of  FRAND,  and  to  consider  possible  incentives  for  more  efficient  SEP 
licensing negotiations and reducing litigation. 
In parallel with this initiative, the Commission has updated the Standardisation strategy11 and 
is  revising  the  Horizontal  guidelines12.  The  new Standardisation  strategy,  published  in 
February  2022,  aims  to  strengthen  the  EU’s  role  as  global  standard-setter,  driving 
international competitiveness and enabling a resilient, green and digital economy. The present 
SEPs  initiative  is  complementary  to  the  Standardisation  strategy  and  the  Horizontal 
guidelines13, currently under review. 

This initiative is also important in the context of global developments. For example, certain 
emerging economies are taking a much more aggressive approach in promoting home-grown 
standards and providing their industries with a competitive edge in terms of market access and 
technology  roll-out.Courts  in  the  UK,  US  and  China  have,  with  their  own  particular 
characteristics, also decided that they have jurisdiction to determine global FRAND terms and 

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Council conclusions on Intellectual property policy and the revision of the industrial designs system in 
the Union, as adopted at its meeting on 10 November 2020 
https://single-market-economy.ec.europa.eu/smes/sme-definition_en 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  Making  the  most  of  the  EU’s 
innovative potential An intellectual property action plan to support the EU’s recovery and resilience of 
25 November 2020, COM(2020) 760 final. 
Council  conclusions  on  intellectual  property  policy,  as  approved  by  the  Council  (Economic  and 
Financial Affairs) at its meeting on 18 June 2021. 
European Parliament resolution of 11 November 2021 on an intellectual property action plan to support 
the EU’s recovery and resilience (2021/2007(INI)) 
COM(2022) 31 final, 2.2.2022, An EU Strategy on Standardisation. Communication on An EU Strategy 
on  Standardisation  -  Setting  global  standards  in  support  of  a  resilient,  green  and  digital  EU  single 
market. COM(2022) 31 final. Brussels 02.02.2022. 
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) 
Chapter 7, para 263 

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conditions  in  specific  cases  which  may  impact  the  EU  industry.14 Some  countries  have 
released15 or are considering guidelines governing SEP licensing negotiations as well.16 

• 

Consistency with existing policy provisions in the policy area 

Standardisation  agreements  usually  produce  significant  positive  economic  effects.  The 
‘potential  SEP’  holder  need  to  declare  to  the  SDO  whether  they  are  willing  to  license  their 
patents  on  FRAND  terms  and  conditions  when  the  standard  is  implemented  in  products  or 
relevant  components  thereof.  If  a  patent  holder  does  not  provide  a  FRAND  commitment  in 
line  with  SDO’  IPR  policy,  their  SEP  contributions  may  not  be  included  in  the  standard. 
However,  by  including  a  patented  technology  in  a  standard,  the  SEP holder has  a  strong 
economic position vis-à-vis a potential standard implementer, because implementers that want 
to incorporate standards cannot work around these patents and must either pay for a licence or 
forego manufacturing of products that use the standard. The more widespread the application 
of the standard is, the stronger the position of the holder can become, which again might lead 
to anticompetitive behaviour of the SEP holder. 

The Horizontal Guidelines provide guidance for SDOs on how to self-assess compliance with 
Article  101(1)  and  Article  101(3)  TFEU  for  standardisation  agreements.  They  set  out  the 
following four principles to be considered by SDOs in their self-assessment: (i) participation 
in  the  standard-setting  is  unrestricted;  (ii)  the  procedure  for  adopting  the  standard  is 
transparent;  (iii)  there  is  no  obligation  to  comply  with  the  standard;  (iv)  there  is  effective 
access to the standard on FRAND terms. In light of this, SDO’s IPR policies typically require 
that participants in standard development disclose the existence of patents (including pending 
patent  applications)  that  may  be  or  become  essential  to  the  relevant  standard. In  principle, 
implementers  would  need  a  licence  from  the  patent  holders  to  practice  the  standard. 
Typically, SEP  holders  would  invite  the  implementers  to  take  such  a  licence  on  FRAND 
terms and conditions. In its landmark judgment in Huawei v. ZTE17, the Court of Justice of the 
European Union (CJEU) recognised the right of the SEP holder to seek to enforce its patents 
in national courts and set out the conditions (steps) that must be fulfilled to prevent an abuse 
of dominant position by the SEP holder when seeking an injunction. Since a patent confers on 
its owner the exclusive right to prevent any third party from using the invention without the 
owner’s consent only in the jurisdiction for which it is issued (i.e. Germany, France, the US, 

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Judgment  of  the  United  Kingdom’s  Supreme  Court  of  26  August  2020,  Unwired  Planet  v.  Huawei, 
UKSC  2018/0214,  [2020]  UKSC  37,  Decision  of  the  United  States  District  Court  for  the  Central 
District of California, TCL v Ericsson, Case No 8:14-cv-00341-JVS-DFM with consent of both parties. 
Chinese Supreme Court’s ruling of 19 August 2021, OPPO v Sharp, Zui Gao Fa Zhi Min Xia Zhong 
No. 517, Order of the Wuhan Intermediate Court of 23 September 2020, Xiaomi v. Interdigital, (2020) 
E 01 Zhi Min Chu 169 No 1; Order of the Wuhan Intermediate Court, Samsung v Ericsson [2020], Case 
E 01 Zhi Min Chu No 743. 
Japanese  Patent  Office  Guide  to  Licensing  Negotiations  Involving  Standard  Essential  Patents;  South 
Korean  Guidelines  on  unfair  exercise  of  Intellectual  Property  Rights;  Singapore’s  Competition  & 
Consumers Commission Guidelines on the treatment of Intellectual Property Rights 
The United States of America withdrew its Policy Statement on Licensing Negotiations and Remedies 
for  Standards-Essential  Patents  Subject  to  F/RAND  Commitments  and  concluded  a  Memorandum  of 
Understanding  with  the  WIPO  Arbitration  and  Mediation  Centre.  The  UK  has  launched  a  process  in 
2021  on  SEPs  and  innovation,  which  is  ongoing.  India’s  Department  of  Telecommunications  is 
discussing  a  proposal  to  set  up  a  Digicom  Intellectual  Property  Management  Board  to  facilitate  IPR 
licensing  and  IP  management  in  the  telecommunication  sector.  China  has  consulted  on  the  draft 
amendments  to  the  implementing  regulations  of  its  Anti  Monopoly  Law.  Japan’s  Patent  Office  is 
revising its guidelines and METI launched a Study Group on Licensing Environment of SEPs. 
Judgment of the Court of justice of 16 July 2015, Huawei Technologies Co. Ltd v ZTE Corp. and ZTE 
Deutschland GmbH, C-170/13, ECLI:EU:C:2015:477. 

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China,  etc.),  patent  disputes  are  governed  by  national  patent  laws  and  civil  proceedings  or 
enforcement laws.18 

Consistency with other Union policies 

• 
The Commission has recently updated its standardisation strategy.19 The new EU Strategy on 
the  EU’s  global 
Standardisation,  published 
competitiveness, to enable a resilient, green and digital economy and to enshrine democratic 
values  in  technology  applications  while  preserving  the  high-quality  output  of  European 
standards. This  initiative is  complementary to  the Standardisation Strategy in  that it aims to 
encourage,  and  reward  the  continued  contribution  of  cutting-edge  technologies  to  standards 
by facilitating the licensing of the patented technologies incorporated in the standards. 

in  February  2022,  aims 

to  strengthen 

The initiative is also complementary to the Horizontal guidelines, currently under review. The 
latter address issues related to the standardisation process and ensure access to the standard on 
FRAND  terms  and  conditions.  The  initiative  provides  tools  to  facilitate  the  SEP  licensing 
process after the publication of the standard without taking a position on competition-related 
issues.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  initiative  relates  to  standards  to  which  a  patent  holder  has  contributed  a  patented 
technology  and  for  which  it  has  committed  to  an  SDO  to  license  on  FRAND  terms  and 
conditions. Standards for which patent holders make FRAND commitments are applied cross-
border  among  Member  States  and  globally.  SEP  licensing  is  also  seldom  national.  Usually, 
licensing  contracts  are  global  and  may  take  into  account  certain  regional  aspects.  The 
international standards in question cover technologies such as 4G, 5G, Wi-Fi, HEVC, AVC, 
DVB and others that ensure interoperability of products worldwide. 

Article  114  TFEU  constitutes  the  appropriate  legal  basis  as  the  objective  is  to  improve  the 
conditions for the establishment and functioning of the single market. The initiative seeks to 
ensure  the  efficiency  of  SEPs  licensing,  facilitating  lawful  access  to  the  standards  and 
promoting wider  adoption of standards. There  are no specific EU or national  rules on SEPs 
apart from certain specific competition law related guidance or court judgments20. In addition, 
as  acknowledged  by  the  CJEU  in  Huawei  v  ZTE,  apart  from  common  rules  relating  to  the 
grant of a European patent, a European patent remains governed by the national law of each 
of the Contracting States for which it has been granted as is also the case for national patents. 
The  CJEU  has  confirmed21 that  recourse  to  Article  114  TFEU  is  possible  if  the  aim  is  to 
prevent  the  emergence  of  obstacles  to  trade  between  Member  States  resulting  from  the 

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Harmonised by Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 
on the enforcement of intellectual property rights (‘IPRED’), OJ L 157, 30.4.2004, p. 45. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  -  An  EU  Strategy  on 
Standardisation; Setting global standards in support of a resilient,  green and digital EU single market, 
2.2.2022, COM(2022) 31 final. 
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. 
1-72, CELEX: and CJEU case-law., in particular Huawei v. ZTE, Case C-170/13, EU:C:2015:477 
Judgment of the Court of Justice of 12 December 2006, Germany v. Parliament and Council, C‑380/03, 
EU:C:2006:772, para. 38 and the case-law cited, and judgment of the Court of Justice of 10 February 
2009,  Ireland  v.  Parliament  and  Council,  C‑301/06,  EU:C:2009:68,  para.  64;  see  also,  to  that  effect, 
judgment of the Court of Justice of 2 May 2006, United Kingdom v. Parliament and Council, C-217/04, 
EU:C:2006:279, paras. 60 to 64. 

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divergent development of national laws. However, the  emergence of such obstacles must be 
considered  likely  and  the  measure  in  question  must  be  designed  to  prevent  them. 
Certain courts  in  Member  States,  in  particular  Dutch22,  French23 and  German24 courts  have 
been considering FRAND-related issues in national litigation based on on the circumstances 
of the disputes brought before them. Those cases show different approaches (not necessarily 
different results) with regard to FRAND determination concerning SEPs covering regional or 
global  standards.  It  is  difficult  for competent  courts  in  the  Member  States  to  handle  SEP-
related cases and make detailed and consistent FRAND determinations. This is in large part 
due  to  the  lack  of  transparency  and  complexity  of  the  issues  that  are  central  to  such 
determinations, such as the essentiality of patents, comparable licences and compliance with 
FRAND requirements. While the initiative will neither interpret the CJEU case-law nor adopt 
methodologies  for  FRAND  determination per  se,  it  will establish  mechanisms  that  promote 
the necessary transparency, increase certainty and reduce the potential for inconsistent rulings. 
This will be a significant improvement in the courts’ abilities to handle SEP disputes.  

• 

Subsidiarity (for non-exclusive competence)  

Measures  taken  at  national,  regional  or  local  level  to  increase  transparency  and  facilitate 
licensing of SEPs may not be efficient for the following reasons. First, instead of an EU-wide 
solution  for  SEPs,  there  might  be  different  national  solutions  for  the  SEPs  on  a  specific 
standard. Second, under an EU-wide approach, it will not be necessary to conduct more than a 
essentiality check per patent family to find that patents are indeed truly essential to a standard. 
The  check  would  be  done  based  on  a  single  EU-wide  methodology.  Third,  non-centralised 
alternative  dispute  resolution  processes  may  come  to  different  results  for  the  same  SEP 
portfolio,  opening  the  door  to  ‘forum  shopping’  within  the  EU.  An  EU-wide  approach  can 
help avoid these problems. 

• 

Proportionality 

The initiative is limited to what is necessary to achieve transparency with regard to SEPs and 
pricing and provide stakeholders with tools to negotiated SEP licensing agreements. Action at 
EU level will be efficient and save costs for stakeholders, in particular SEP holders, and for 
Member  States.  For  example,  there  could  be  one  register  instead  of  many  registers,  one 
essentiality  check  for  the  whole  EU,  one  methodology  for  carrying  out  such  checks,  and  a 
streamlined  and  transparent  FRAND  determination  process.  SEP  holders and  implementers 
will not have to repeatedly incur the same costs in each EU Member state that has chosen to 
introduce SEP specific rules. 

• 

Choice of the instrument 

EU-wide rules on transparency regarding SEPs and FRAND terms would have a harmonising 
effect  within  the  EU  which  would  facilitate  the  work  of  national  courts  and  the  future 
Unified Patent  court.  The  instrument  to  implement  this  initiative  should  be  a  regulation.  A 

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Court  of  Appeal  of  The  Hague,  judgment  of  2  July  2019,  Philips  v  Wiko,  Case  number  : 
C/09/511922/HA  ZA  16-623;  Hoge  Raad,  Judgment  of  25  February  2022,  Wiko  v  Philips,  Nummer 
19/04503, ECLI:NL:HR:2022:294; District Court The Hague, Judgment of 15 December 2021, Vestel v 
Access Advance, ECLI:NL:RBDHA:2021:14372. 
Paris  Court,  order  of  the  pre-trial  judge  of  6  February  2020,  TCT  v  Philips,  RG  19/02085  –  Portalis 
352J-W-B7D-CPCIX;  TJ  Paris,  3.3,  judgment  of  7  December  2021,  Xiaomi  v  Philips  and  ETSI,  RG 
20/12558.  
German  Federal  Court  of  Justice  (‘Bundesgerichtshof  –  BGH’),  judgement  of  5  May  2020,  Sisvel  v. 
Haier,  KZR  36/17,  and  German  Federal  Court  of  Justice,  judgment  of  24  November  2020,  FRAND-
Einwand  II,  KZR  35/17;  Order  of  24  June  2021,  Nokia  Technologies  v  Daimler,  C-182/21, 
EU:C:2021:575  (request  for  a  preliminary  ruling  from  the  Landgericht  Düsseldorf,  removed  from  the 
Register). 

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regulation  would  be  directly  applicable,  including  by  empowering  an  EU  agency  with  the 
tasks  of  managing  a  register  of  SEPs,  and  establishing  a  common  FRAND  determination 
procedure  that  would  ensure  uniformity  across  the  EU  and  provide  greater  legal  certainty. 
These outcomes cannot be achieved by means of a Directive. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable 

Stakeholder consultations 

• 
The Commission has conducted a series of webinars25. The statistics for the webinars can be 
summarised as follows: 16 hours of content; by over 60 speakers; over 450 interactions in the 
Q&A  field;  over  1 700  impressions on  the  events;  over  800  people  in  the  Commission SEP 
Teams group; and over 1 000 respondents to the Commission surveys in total. 

The call for evidence was published on 14  February 2022 and was  open until  9 May  2022. 
During that period 97 replies and 49 position papers were submitted. 

The public consultation took place between 14 February 2022 and 9 May 2022. During that 
period 74 replies were submitted. 

A targeted survey for start-ups and SMEs was published on 28 October 2022 and was closed 
on 20 November 2022. At the request of a number of stakeholders, the survey was re-opened 
on 25 November 2022 without a closing date to enable stakeholders keep on responding as the 
markets on the Internet of Things (‘IoT’) develop. By the end of 2022, the Commission had 
received 39 replies. 

Discussion with Member States' representatives took place in within the Commission Expert 
Group on IP Policy and relevant Council working parties. 

The positions of the main stakeholders such as SEP holders, implementers, their consultants 
and experts as well as their representative associations are largely known. For this reason, the 
public consultation addressed very specific SEP-related issues and sought views on concrete 
potential actions. 

Around half of all respondents assessed the impact of the current SEP licensing framework on 
SMEs and start-ups as negative, a third thought there was no impact, and around 5 % deemed 
it positive. 

Almost three quarters of respondents would request a licence in order not to infringe a SEP 
and 60 % to be able to plan production and costs. The main reasons for having/licencing SEP 
are securing a return on investment on R&D (70 % of answers), followed by use of SEP for 
defensive/bargaining  purposes  (60  %)  and  participation  in  standardisation  process  in  the 
future (40 %). 

Lack  of  transparency  on  the FRAND  royalty  rate,  on  SEP  landscape  (who  owns  SEPs)  and 
divergent court rulings were named as the key problems by three quarters of all respondents, 
including  all  respondents  in  the  groups  of  those  with  predominantly  implementer-friendly 
views (implementers). For the group of those with predominantly SEP-holder-friendly views 
(SEP holders) the main problems were hold-out and anti-suit injunctions. 

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See webpage https://ec.europa.eu/growth/content/webinar-series-standard-essential-patents_en  

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Respondents  asked  for  more  public  information  on  SEPs  as  regards  ‘patent  and  application 
number’ (88 % of all responses), ‘relevant standard, version, section of the standard’ (80 %), 
‘contact  details  of  SEP  holder’  (80  %),  ‘transfer  of  ownership’  (77  %),  ‘licensing 
programmes’ (76 %) and ‘standard FRAND terms and conditions’ (72 %). Around 60 % of all 
respondents  and  90  %  of  implementers supported  third-party  essentiality  checks  as  long  as 
independent experts do them. Only 24 % of SEP holders supported such a solution. A third of 
all respondents considered that essentiality checks should not have legal consequences. 

Around  two  thirds  of  all  respondents  and  around  80  %  of  implementers thought  that 
essentiality assessment might help in assessing a product's SEP exposure and deciding whom 
to negotiate with, smoothen licensing negotiation and prevent over pricing. More than half of 
SEP  holders disagreed  with  these  impacts  but  agreed  that  checks  might  provide  a  reliable 
overview of the share of each SEP holders’ essential patents. 

Around  three  quarters  of  respondents agreed  that  fair  and  reasonable  terms  and  conditions 
might  depend  on  functionalities  of  the  standard  implemented  in  a  product.  Around  70  % 
thought these terms should be independent of the level of licencing. 

70 % of all respondents  and 100 % of implementers argued that it is important to know the 
reasonable aggregate royalty rate for a product. Only 20 % of SEP holders shared that view. 

Arbitration (53 % of all answers) was deemed more useful than mediation (35 %) for FRAND 
assessment, 
academia/authorities/non-governmental 
organisations. 

especially  by  SEP  holders and 

• 

Collection and use of expertise 

The  impact  assessment  relied  primarily,  but  not  excusively,  on two  external  studies  and  the 
contribution of the SEP Expert Group: 

'Baron,  J.,  Arque-Castells,  P.,  Leonard,  A.,  Pohlmann,  T.,  Sergheraert,  E.,  Empirical 
Assessment  of  Potential  Challenges  in  SEP  Licensing,  European  Commission,  DG 
GROW, 2023'; 

'Charles  River  Associates,  Transparency,  Predictability,  and  Efficiency  of  SSO-based 
Standardization  and  SEP  Licensing,  European  Commission,  DG  GROW,  2016, 
https://ec.europa.eu/docsroom/documents/48794';  

‘Group of Experts on Licensing and Valuation of Standard Essential Patents – Contribution to 
the Debate on SEPs’ (2021). 

The Commission has conducted many studies, the most relevant of which are: 

‘European  Commission,  Joint  Research  Centre, Bekkers,  R.,  Henkel,  J.,  Tur,  E.  M.,  et  al., 
Pilot study for essentiality assessment of standard essential patents, Publications Office of the 
European Union, 2020'; 

‘Landscape study of potentially essential patents disclosed to ETSI’, JRC study (2020); 

‘Licensing Terms of Standard Essential  Patents: A Comprehensive Analysis of Cases’, JRC 
study (2017); 

‘Patents and Standards: A modern framework for IPR-based standardisation’ (2014). 

In  addition,  the  Commission  reviewed  numerous  papers  and  positions  submitted  by 
stakeholders,  professional  articles  on  the  subject  and  studies  conducted  on  behalf  of  other 
authorities.  The  Commission  analysed  initiatives  on  SEPs  in  non-EU  countries.  To  prepare 
the  impact  assessment  and  the  draft  regulation,  the  Commission  consulted  with  leading 

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experts,  judges  and  academics.  Finally,  the  Commission  attended  numerous  webinars  and 
conferences. 

• 

Impact assessment 

The Commission conducted an impact assessment and submitted it to the Regulatory Scrutiny 
Board  in  February  2023 and  received  a  positive  opinion  on  17  March  2023 (REF  to  be 
added). The final impact assessment takes into account comments contained in that opinion. 

In the impact assessment, the Commission considered the following problems: high licensing 
transaction  costs  and  uncertainty  about  the  SEP  royalty  burden.  Due  to  lack  of  sufficient 
information,  implementers  cannot  assess  their  SEP  exposure  far  enough  in  advance  to  take 
into account the licensing costs when planning their product business. On the other hand, SEP 
holders complain about long and expensive negotiations, especially with large implementers. 

More specifically, the following causes of these problems were identified. First, there is only 
limited information on who owns SEPs, and it is not certain that all patents for which licences 
are sought are really necessary (essential) to implement a standard. Second, there is very little 
information on SEP licence fees (FRAND royalty), so implementers with little or no expertise 
or resources find it impossible to assess the reasonableness of a SEP holder’s royalty demand. 
Finally, licensing disputes can be time- and cost-intensive. 

Consequently,  the  initiative  aims  at  facilitating  SEP  licensing  negotiations  and  lowering 
transaction costs for both SEP holders and implementers by (i) providing more clarity on who 
owns SEPs and which SEPs are truly essential; (ii) providing more clarity on FRAND royalty 
and  other  terms  and  conditions,  including  awareness  raising  with  regard  to  licensing  in  the 
value chain; and (iii) facilitating SEP dispute resolution.  

The  following  options  were  considered  to  achieve  these  objectives  (the  policy  options  are 
built incrementally, each adds new elements to the preceding one):  

Option  1:  Voluntary  guidance.  This  would  involve  establishing  non-binding  guidance  on 
SEP licensing. A competence centre on SEPs created within the European Union Intellectual 
Property  Office  (EUIPO) would  provide  free  advice  to  SMEs  on  licensing  negotiations 
(including  trainings)  and  monitor  the  SEP  market,  conduct  studies  on  SEP  licensing  and 
promote alternative dispute resolution.  

Option 2: SEP register with essentiality checks. SEP holders seeking to license their SEPs 
for  royalty  and  to  enforce  them  in  the  EU  would  have  to  register  the  patents  in  the  SEP 
register. To ensure the quality of the register, essentiality checks would be conducted by an 
independent evaluator using a methodology to be determined by the Commission at EU level 
and a system administered by the EUIPO. Sub-options are: to (i) check all registered patents; 
or (ii) check a small number of patents pre-selected by SEP holders and a random sample of 
patents registered by each SEP holder. 

Option  3:  SEP  register  with  essentiality  checks  and  conciliation 
(FRAND 
determination) procedure.  Before  launching  a  litigation,  parties  to  SEP  licensing  dispute 
would  have  to  go  through  a  mandatory  conciliation  process.  An  independent  conciliator 
would seek to  help  parties reach mutually  acceptable licensing terms  and conditions.  At the 
end  of  the  process, if  the  parties  fail  to  reach  agreement,  the  conciliator  will  issue  a  non-
binding  report  with  recommendations  on  the  FRAND  rate  (with  a  confidential  and  a  non-
confidential part).  

Option  4:  Aggregate  royalty  for  SEP.  Processes  would  be  established  for  determining  an 
aggregate  royalty  (i.e.  total  maximum  price)  for  using  a  standard  before  or  shortly  after  its 
publication.  SEP  holders would  be  expected  to  agree  on  such  royalty  (potentially  with  the 

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help  of  an  independent  facilitator  from  the  competence  centre).  Additionally,  both 
implementers  and  SEP  holders could  request  an  expert  opinion  on  the  aggregate  royalty, 
where  all  the  interested  parties  would  be  able  to  present  their  views.  Finally,  an  aggregate 
royalty  could  be determined during the conciliation  if the parties so  request.  This  aggregate 
royalty would equally not be binding and would be published in the SEP register.  

Option 5: SEP clearing house. Establishment of a one-stop-shop for implementers to acquire 
SEP  licences  by  depositing  an  aggregate  royalty  with  the  competence  centre.  SEP 
holders should  inform  the  centre  how  to  allocate  the  aggregate  royalty  among  them,  failing 
which they would not be able to collect their royalty payments. They should also sign licence 
agreements with any implementer who would make a deposit. Any royalties not collected by 
SEP holders within a year from the deposit would be returned to the implementers.  

Option  4  (voluntary  guidance,  SEP  register  with  essentiality  checks,  FRAND 
determination procedure and aggregate royalty determination for SEPs) is the preferred 
option. The option reduces information asymmetry between a SEP holder and an implementer 
by providing the latter  with  information  who the relevant  SEP holders are, how many SEPs 
they  have  registered  in  the  register  and  what  their  essentiality  rate  is  (derived  from  a 
representative  random  sample  of  all  registered  SEPs)  and  what  the  potential  [or  maximum] 
total  cost  of  using  a  standardised  technology  (aggregate  royalty)  is.  A  pre-trial  obligatory 
conciliation is likely to reduce SEP dispute settlement costs to about 1/8 as the conciliator will 
assist  both  parties  in  reaching  an  agreement.  A  competence  centre  will  provide  objective 
information,  guidance  and  support  to  SMEs  on SEPs  and  SEP  licensing.  Benefits  and  costs 
are presented in the table below. 

Table  1:  Average  total  approximated  annual  costs  and  benefits  of  the  preferred  option  per 
affected party and location (EUR million). 

EU 

-0.77 

Costs 

Benefits 

12.89 

SEP 
implementer
s 

Net 

SEP holders  Costs 

12.11 

-8.13 

Benefits 

3.79 

Net 

Subtotal 
implementers and holders) 

(net  effect 

for 

-4.33 

7.8 

European  or  national  patent 
office benefit 

29.0 

non-EU 

Total 

-0.77 

13.03 

12.26* 

-46.04 

21.50 

-24.54 

-12.3 

-1.5 

25.9 

24.4 

-54.2 

25.3 

-28.9 

-4.5 

29.0 

Total net benefit 

36.8 

-12.3 

24.5 

* concerns non-EU implementers with subsidiaries in the EU 

Note: numbers rounded which may affect totals 

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• 

Regulatory fitness and simplification 

This initiative is not part of the REFIT simplification effort as there are currently no EU rules 
on SEPs that could be simplified or made more efficient. 

• 

Fundamental rights 

The proposal should improve the conduct of business for both SEP holders and implementers, 
and ultimately other businesses downstream (Article 16 of the Charter). 

The  proposal respects the  intellectual  property  rights  of  patent  holders (Article  17(2)  of  the 
EU Charter of Fundamental Rights), although it includes a restriction on the ability to enforce 
a  SEP  that  has  not  been  registered  within  the  prescribed  time-limits  and  introduces  a 
requirement  to  conduct  conciliation  (FRAND  determination)  prior  to enforcing  individual 
SEPs. Limitations on the exercise of IP rights are 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 EU and do not constitute, with regard to the aim pursued, a disproportionate 
and intolerable interference which infringes the very essence of the rights guaranteed26. In that 
respect,  the  proposal is  in  the  public  interest  in  that  it  provides  a  uniform,  open  and 
predictable  information  and  outcome on  SEPs  for  the  benefit  of  SEP  holders,  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 time-limited and aimed at  improving and streamlining the process but  are 
not ultimately binding.27 

The  FRAND  determination is  also consistent  with  the  right  to  an  effective  remedy  and  to 
access to justice (Article 47 of the EU Charter) as the implementer and the SEP holder fully 
retain  that  right.  If  the  SEP  is  not  registered,  the  exclusion  of  the  right  to  effective 
enforcement  is  temporary,  thus  limited,  and  necessary,  and  meets  objectives  of  general 
interest. As  confirmed  by  the  CJEU28,  a  mandatory  dispute  resolution  as  a  precondition  to 
access  to courts  would  be  deemed  to  be  compatible  with  the  principle  of  effective  judicial 
protection.  The  FRAND  determination follows  the  conditions  for  mandatory  dispute 
resolution outlined in the CJEU judgments, taking into account the particular characteristics 
of SEP licensing. 

4. 

BUDGETARY IMPLICATIONS 

This proposal would have no impact on the European Union. The SEP system introduced with 
the  initiative  will  remain  fully  self-funded,  using  fees  paid  by  EUIPO  competence  centre 
service users. EUIPO is going to finance set up costs (including IT costs) of the competence 
centre, the SEP register and other services. It is expected to recuperate these set up costs by 
fees charged when the system is fully operational.  

26 

27 

28 

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, ECLI:EU:C:1989:321, paras. 17 and 18. 
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  judgment  of  the  Court  of  Justice  of  18  March  2010,  Rosalba  Alassini  v  Telecom  Italia  SpA  (C-
317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA 
(C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08), Joined cases C-317/08, C-318/08, C-
319/08 and C-320/08, ECLI:EU:C:2010:146, taking into account the specificities of SEP licensing. 
see footnote above. 

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The  EUIPO  estimates  that  set-up  cost  of  the  competence  centre  and  register  including  IT 
infrastructure  will  amount  to  around  EUR  2.4  million  and  may  involve  work  of  up  to 
12 FTEs.  The  EUIPO  running  cost  of  the  new  system  will  require  around  EUR  2  million 
annually (excluding services of external  experts such as essentiality experts or conciliators). 
The  costs  will  be  higher  in  the  initial  year(s)  when  registration  of  an  estimated  number  of 
72 000 patent families, and essentiality  checks  for an estimated number of  14 500 SEPs are 
expected (which are estimated to be the peak of  all registrations and essentiality checks). In 
the subsequent years, the number of registrations and essentiality checks is expected to drop 
to  10%  of  the  peak  numbers.  During  the  operational  period,  the  competence  centre  would 
require on average around 30 FTEs in the peak year(s), and around 10 FTEs in the following 
years.  The  financial  and  budgetary  impacts  of  this  proposal  are  presented  in  the  legislative 
financial  statement  annexed  to  this  proposal.  Detailed  calculation  of  costs  are  presented  in 
Annex 7.1 of the Impact Assessment. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  Commission  will  use  the  data  collected  by  the  competence  centre  (EUIPO)  to  monitor 
implementation  of  this  proposal and  the achievement  of  its  objectives.  The  monitoring 
activities  would  take  into  account  the  required  implementation  period  (including  the  time 
needed to enact the necessary new implementing legislation based on implementing powers to 
be conferred to the Commission) and the time needed for market participants to adapt to the 
new situation. The set of pertinent indicators referred to in Section 9 of the impact assessment 
would be considered for evaluating the changes.  

A  first  evaluation  will  be  scheduled  for  8  years  after  entry  into  force  of  the  Regulation 
(allowing  for  the  fact  that  the  Regulation  will  start  to  apply  24  months  after  entry  into 
force). The implementing acts need to be adopted, and the competence centre needs to be set 
up organisationally during that time. Subsequent evaluations will be carried out every 5 years. 

• 

Detailed explanation of the specific provisions of the proposal 

Title I determines the subject matter and the scope of the proposal. 

The  proposal  provides  for  enhanced transparency  with  regard  to  information  necessary  for 
SEP  licensing;  registration of  SEPs;  procedure  for  evaluating  the  essentiality  of  registered 
SEPs; and procedure for determination FRAND terms and conditions for a SEP licence. 

The proposal  applies  to  SEPs in  force in  one or  more Member States.  It  concerns standards 
published by a standard development organisation (SDO) that calls on SEP holders to commit 
to  licensing  on  fair,  reasonable  and  non-discriminatory  (FRAND)  terms  and  conditions.  It 
does  not  apply to  SEPs  that  are  subject  to  royalty-free  intellectual  property  policy  of  the 
SDO that has published the standard. The proposal does not apply to claims of invalidity and 
infringement of SEPs unrelated to the scope of this Regulation. 

Title II of the proposal creates a competence centre within EUIPO to administer databases, a 
register  and  the  procedures  for  essentiality  checks  of  SEPs  and  the  FRAND  determination. 
The  competence  centre  will  also provide training,  support  and  general  advice  on  SEPs  to 
SMEs and raise awareness of SEP licensing. 

Title  III  This  Title includes  provisions  detailing  the  process  of  notifying  standards  and 
aggregate  royalty,  registration  of  SEPs  and  expert  opinion  on  aggregate  royalty.  It  also 
includes  provisions  concerning  the  information  and  data  that  the  competence  centre  would 
include in the register and databases. The registration will be subject to a fee. 

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The  SEP  registration  process  is  triggered  when  contributors  or  implementers  notify  the 
competence  centre  of  a  standard  and/or  aggregate  rates  for  a  standard  and  specific 
implementations  of  the  standard. The  competence  centre  publishes  a  notice  inviting  SEP 
holders to register. SEP holders have 6 months to register. To incentivise timely registration 
following  the  6  months,  SEP  holders  cannot  enforce  their  SEPs  until they  register.  A  SEP 
holder that  has  not  registered  within the  6  months  may  also  not  seek  royalties  and  damages 
prior  to  the  registration.  This  is  not  only  to  encourage  registration  but  also  to  ensure  legal 
certainty for implementers. 

The rules take account of the fact that certain SEPs may be granted by a patent office after the 
6 month period and certain implementations of a standard may not be known at the time of 
publication of the standard. A SEP may be removed from the register only where the SEP has 
expired,  has  been  invalided  or  found  non-essential.  The  registration  can  be  modified  and 
should  be  updated  by  the  SEP  holder.  Any  stakeholder  can  signal  that  a  registration  is 
incorrect or incomplete and needs to be modified. 

Contributors or implementers may request an expert opinion on the aggregate royalty, subject 
to a fee. The competence centre would then appoint a panel of three conciliators to deliver the 
expert opinion. Any stakeholder can participate in the process and express its views provided 
that it demonstrates its interest. The expert opinion should also consider potential impacts on 
the value chain in question. The expert opinion will not be binding but will serve to provide 
the industry with some guidance in respect of individual SEP licensing negotiations. 

In  addition  to  the  data  provided  by  the  SEP  holders  in  the  register  and/or  the  databases  on 
individual  SEPs,  public  licensing  arrangements  and  contact  details,  the  competence  centre 
should collect data on case law worldwide, rules of third countries and public information on 
FRAND terms and conditions. It should also produce statistics and commission studies. The 
objective would be to have a one-stop shop for everything a stakeholder needs to know about 
SEPs  and  SEP  licensing. Most  of  the  information  will  be  available  free  of  charge  to  the 
public.  Some  specific  detailed  information,  for  example,  on  particular  SEPs  or  on  reports 
from FRAND determinations will be available only on registration and for a fee. SMEs will 
benefit from reduced fees. 

Title  IV  of  the  proposal  contains  rules  for  the  selection  of  candidate  evaluators  and 
conciliators  to  carry  out  tasks  assigned  to  them  in  proceedings  set out  in  the  proposal. The 
evaluators or conciliators should not only have the requisite technical competence but should 
demonstrate that they are independent and no biased. The competence centre should establish 
a  roster  of  candidates  that  satisfy  all  conditions.  The  competence  centre  should regularly 
review the rosters that a sufficient number of qualified candidates is maintained. 

Title V of the proposal pertains to essentiality checks of SEPs. Determining whether a patent 
is essential to a standard is a very difficult technical task. Despite the best efforts of the SEP 
holders, there may be registered SEPs that are not actually essential to the standard for which 
they  are  registered.  Essentiality  checks  are  thus  very  important  to  ensure  the  quality  of  the 
register and also to prevent any potential abuse, because of a lack of checks on the registered 
data. Essentiality checks are also important for SEP holders or implementers, who may wish 
to submit some of their SEPs for such a check to demonstrate essentiality or non-essentiality 
during  negotiations.  The  essentiality  checks  will  be  subject  to  a  fee  payable  by  the  SEP 
holders whose SEPs are checked and by the implementers who request such checks. The lack 
of  an  essentiality  check  should  not  preclude  licensing  negotiations  or  any  court  or 
administrative procedure in relation to such SEPs. 

Essentiality  checks  on  claimed  SEPs  entered  into  the  SEP  register  will  be  conducted  by 
evaluators  who  have  expertise  in  the  relevant  technical  field  and  whose  independence  is 

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beyond doubt. Such checks will be made annually on a sampling basis and there will be only 
one essentiality check per patent family. The checks will be conducted based on methodology 
that ensures  a fair and statistically valid selection capable of producing sufficiently accurate 
results  about  the  percentage  of  truly  essential  patents  among  each  SEP  holder's  registered 
SEPs.  

If the during the check, the evaluator has reasons to believe that the claimed SEP may not be 
essential  to  the  standard,  she  or  he  should  inform  the  SEP  holder  through  the  competence 
centre of any such reasons and give the SEP holder time to submit its observations. Only after 
considering the response will the evaluator deliver its final reasoned opinion. The SEP holder 
would  be  able  to  request  a  peer  evaluation  before  a  negative  opinion  by  the  evaluator  is 
issued.  The  results  of  the  peer  evaluation  should serve  to  improve  the  essentiality  check 
process and ensure consistency. 

Title  VI  of  the  proposal  establishes  provisions  for  the  determination of FRAND  terms  and 
conditions. The  FRAND determination  must  be  initiated  by  the  SEP  holder or  implementer 
before initiating respective court proceedings in  the EU. A FRAND determination may also 
be initiated by one of the parties voluntarily to resolve disputes related to FRAND terms and 
conditions. 

Where the  responding party  does not  reply to the request, the competence centre  will either 
terminate the procedure or, upon request of the requesting party, continue with the FRAND 
determination.  This  may  be  necessary  either  to  establish  that  an  offer  is FRAND  or  to 
determine the amount of the security. 

If both parties engage in the process, or in case the proceedings are continued with one party 
only, a conciliator will be appointed. The parties or party, as applicable, will be requested to 
make submissions  and proposals.  They can also  commit to comply with  the outcome of the 
FRAND  determination.  The conciliator  will assist  them  in  an  independent  and  impartial 
manner  in  their  endeavour  to  reach  a  FRAND  rate  determination.  The  conciliator  will  be 
empowered to  proactively  seek information,  consult all information  available in  the  register 
and  databases,  including  the  confidential  reports  of  other  FRAND  determinations and 
hear any experts, where necessary. The conciliator will make proposal(s) to  the parties. The 
procedure  should  not  last  longer  than  9  months.  If,  at  the  end  of  the  procedure,  the  parties 
have not yet settled, the conciliator will make a final proposal, which the parties may or may 
not accept. 

If the parties settle, the conciliator will terminate the procedure without a report. If the parties 
do not settle at the end of the procedure, the conciliator will terminate the procedure and issue 
a report on the determination of FRAND terms and conditions. The non-confidential part of 
that report will contain their last proposal and the methodology the conciliator applied for the 
determination, and will be available for consultation in the register/database(s). 

If  a  party  obstructs  the  FRAND  determination  or  seeks  resolution  in  other  jurisdictions,  the 
conciliator may propose that the other party either terminate or continue with the procedure. 
The complying party will decide how to proceed depending on its needs. 

Title  VII  of  the  proposal  contains  provisions  setting  out  the  treatment  of micro-enterprises 
and  small  and  medium-sized  enterprises  taking  into  account  their  specific  needs. The 
competence centre will offer training and provide support on SEP-related matters for micro-
enterprises, small and medium-size enterprises free of charge. The costs will be borne by the 
EUIPO.  When  negotiating  a  SEP  licence  with  micro,  small  and  medium-sized  enterprises, 
SEP  holders will  be  required  to  consider  offering  them  more  favourable  FRAND  terms  and 
conditions. 

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Title VIII of the proposal contains rules as regards the fees and charges for the services of the 
competence  centre.  Those  fees  should  be  reasonable  and  reflect  the  costs  for  the  service 
rendered. The Commission will adopt implementing acts to determine the administrative fees, 
and the fees for expert opinions on aggregate royalty, evaluators and conciliators, the amounts 
to  be  charged and  the  payment  method.  Fees  should  be  appropriate  to  the  needs  of  micro, 
small and medium-sized enterprises. 

Title  IX  of  the  proposal  contains  final  provisions.  The  proposed  regulation  applies  to 
standards  published after  its  date  of  application.  There  may  also  be  a  need  to  cover  certain 
important  standards  such  as  4G  on  which  many  IoT  applications  run  and  for  which  SEP 
licencing  is  inefficient.  Such  standards  shall  be  determined  in  a  delegated  act  and  may 
consequently be notified to the competence centre within a limited time-period after the date 
of application to trigger the registration process. This Title also includes the empowerment of 
the  Commission  to  adopt  delegated  and  implementing  acts  and  the  evaluation  and  review 
clause. Finally, the Title contains provisions to amend Regulation (EU) 2017/1001. 

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2023/0133 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on standard essential patents and amending Regulation (EU)2017/1001 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee29,  
Having regard to the opinion of the Committee of the Regions30, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

29 
30 
31 

32 
33 

34 

On  25  November  2020,  the  Commission  published  its  intellectual  property  action 
plan31,  where  it  announced  its  goals  of  promoting  transparency  and  predictability  in 
licensing  of  standard  essential  patents  (SEPs),  including  by  improving  the  SEP 
licensing  system,  for  the  benefit  of  Union industry  and  consumers,  and  in  particular 
small  and  medium-sized  enterprises  (SMEs)32.  The  action  plan  was  supported  by 
Council  Conclusions  of  18  June  202133 and  by  the  European  Parliament  in  its 
Resolution34 

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 

OJ C , , p. . 
OJ C , , p. . 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  Making  the  most  of  the  EU’s 
innovative potential An intellectual property action plan to support the EU’s recovery and resilience of 
25 November 2020, COM(2020) 760 final. 
OJ L 124 of 20.05.2003, p. 36. 
Council  conclusions  on  intellectual  property  policy,  as  approved  by  the  Council  (Economic  and 
Financial Affairs) at its meeting on 18 June 2021.  
European Parliament resolution of 11 November 2021 on an intellectual property action plan to support 
the EU’s recovery and resilience (2021/2007(INI)). 

EN 

15 

  EN 

                                                 
(3) 

(4) 

technologies,  particularly 
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. 

in  Internet  of  Things  (IoT) 

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  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. 

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.  

(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. 

(6) 

Because a FRAND commitment should be made for any SEP declared to any standard 
intended for repeated and continuous application, the meaning of standards should be 

EN 

16 

  EN 

(7) 

(8) 

(9) 

broader than in Regulation (EU) No 1025/2012 of the European Parliament and of the 
Council35. 

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. 

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. 

In the Union, standard setting and the application of competition law rules related to 
FRAND  obligation  to  standard  essential patents  are  guided  by  the  Horizontal 
Guidelines36 and  the  Court  of  Justice  judgment  of  16  July  2015  in  case  C-170/13, 
Huawei Technologies Co. Ltd v ZTE Corp. and ZTE Deutschland GmbH37. The Court 
of Justice recognised the right of a SEP holder to seek to enforce its patents in national 
courts  subject  to  certain  conditions  that  must  be  fulfilled  to  prevent  an  abuse  of 
dominant  position  by  the  SEP  holder when  seeking  an  injunction.  Since  a  patent 
confers  on  its  holder  the  exclusive  right  to  prevent  any  third  party  from  using  the 
invention  without the holder’s consent  only in  the jurisdiction for which  it is  issued, 
the patent disputes are governed by national patent laws and civil proceedings and/or 
enforcement  laws  harmonised  by Directive  2004/48/EC  of  the  European  Parliament 
and of the Council38. 

(10)  As  there  are  specific  procedures  for  assessing  the validity  and  the  infringement  of 

patents, this Regulation should not affect such procedures. 

(11)  Any reference to a competent court of a Member State in this Regulation includes the 

Unified Patent Court where the conditions are met. 

(12)  To  facilitate  the  implementation  of  this  regulation,  the  European  Union  Intellectual 
Property Office (EUIPO) should perform the relevant tasks by means of a competence 
centre.  The  EUIPO  has  extensive  experience  with  managing  databases,  electronic 
registers and alternative dispute settlement mechanisms, which are key aspects of the 
functions  assigned  under  this  Regulation. It  is  necessary  to  equip  the  competence 
centre with necessary human and financial resources to fulfil its tasks. 

(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 

35 

36 

37 

38 

Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on 
European  standardisation,  amending  Council  Directives  89/686/EEC  and  93/15/EEC  and  Directives 
94/9/EC,  94/25/EC,  95/16/EC,  97/23/EC,  98/34/EC,  2004/22/EC,  2007/23/EC,  2009/23/EC  and 
2009/105/EC  of  the  European  Parliament  and  of  the  Council  and  repealing  Council  Decision 
87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 
14.11.2012, p. 12.) 
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) 
Judgment of the Court of Justice of 16 July 2015, Huawei Technologies Co. Ltd v ZTE Corp. and ZTE 
Deutschland GmbH, C-170/13, ECLI:EU:C:2015:477 
DIRECTIVE  2004/48/EC  OF  THE  EUROPEAN  PARLIAMENT  AND  OF  THE  COUNCIL  of  29 
April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45.) 

EN 

17 

  EN 

                                                 
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. 

(14)  The  competence  centre  should  be the  subject  of Union rules  on  access  to  documents 
and data protection. Its tasks should be designed to increase transparency by making 
existing information relevant to SEPs available to all stakeholders in a centralised and 
systematic way. Therefore, a balance would have to be made between the free public 
access to basic information and the need to finance the functioning of the competence 
centre. In order to cover the maintenance costs a registration fee should be requested to 
access  detailed  information  contained  in  the  database,  such  as  results  of  any 
essentiality checks and non-confidential FRAND determination reports. 

(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. 

(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 

EN 

18 

  EN 

(17) 

and cross-licensing, and impact on incentives to innovate of SEP holders and different 
stakeholders in the value chain. 

information  on 

In  line  with  the  general  principles  and  objectives  of  transparency,  participation  and 
access  to  European  standardisation,  the  centralised  register  should  make information 
regarding  the  number  of  SEPs  applicable  to  a  standard,  the  ownership  of  relevant 
SEPs,  and  the  parts  of  the  standard  covered  by  the  SEPs  publicly  available. The 
register  and the  database  will  contain 
relevant  standards, 
products, processes,  services  and  systems,  which  implement  the  standard,  SEPs  in 
force in the EU, standard SEP licensing FRAND terms and conditions or any licensing 
programmes,  collective  licensing  programmes  and  essentiality.  For  SEP  holders the 
register  will  create  transparency  with  regard  to  the  relevant  SEPs,  their  share  of  all 
SEPs declared to the standard and the features of the standard covered by the patents. 
SEP  holders will  be  in  a  better  position  to  understand  how  their  portfolios  compare 
with  other  SEP  holders’  portfolios.  This  is  important  not  only  for  negotiations  with 
implementers but also for the purpose of cross-licensing with other SEP holders. For 
implementers,  the  register  will  provide  a  trusted  source  of  information  on  the  SEPs, 
including  with  regard  to  the  SEP  holders  from  whom  the  implementer  may  need  to 
obtain  a  licence.  Making  such  information  available  in  the  register  will  also  help 
shorten the length of technical discussions during the first stage of the SEP licensing 
negotiations. 

(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. 

(19) 

In  order  to  ensure  transparency  of  about SEPs,  it  is  appropriate  to  require  from  SEP 
holders to  register  their patents  which  are  essential  to  the  standard  for  which  the 
registration is open. SEP holders should register their SEPs within 6 months following 
the  opening  of  the  registration  by  the  competence  centre  or  the  grant  of  the  relevant 
SEPs, whichever is first. In case of timely registration, SEPs holders should be able to 
collect  royalties and claim  damages for uses  and infringements  that happened before 
the registration. 

(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. 

(21)  Clauses  in  licensing  agreement  that  set  a  royalty  for  a  large  number  of  patents  – 
present  or  future  –  should  not  be  affected  by  the  invalidity,  non-essentiality,  or 
unenforceability of a small number of those patents when they do not affect the overall 
amount and enforceability of the royalty or other clauses in such agreements. 

(22)  SEP holders should ensure that their SEP registration(s) are updated. Updates should 
be  registered  within 6  months  for  relevant  status  changes,  including  ownership, 
invalidation 
from  contractual 
commitments  or  public  authorities’  decisions. Failure  to  update  the  registration  may 
lead to the suspension of the registration of the SEP from the register. 

findings  or  other  applicable changes 

resulting 

(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 

EN 

19 

  EN 

decision  or  ruling  of a  competent  court  of  a  Member  State  or  found  non-essential 
under this Regulation. 

(24)  To  further  ensure  the  quality  of  the  register  and  avoid  over-registration,  essentiality 
checks  should  also  be  conducted  randomly by  independent  evaluators  selected 
according  to  objective  criteria  to  be  determined  by  the  Commission.  Only  one  SEP 
from the same patent family should be checked for essentiality. 

(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. 

(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. 

(27)  Any  assessment  of  essentiality  of  SEPs  conducted  by  an  independent  entity  prior  to 
the  entry  into  force  of  the  Regulation,  for  example  through  patent  pools,  as  well  as 
essentiality  determinations  by  judicial  authorities  should  be  indicated in  the  register. 
Those  SEPs  should not  be  re-checked  for  essentiality  after  the  relevant  evidence 
supporting the information in the register is provided to the competence centre. 

(28)  The evaluators should work independently in accordance with the rules of procedure 
and Code of Conduct to be determined by the Commission. The SEP holder would be 
able request a peer evaluation before the issuance of a reasoned opinion. Unless a SEP 
is  the  subject  of  a  peer  review,  there  would  be  no  further review  of  the  essentiality 
check  results.  The  results  of  the  peer  evaluation  should serve  to  improve  the 
essentiality  check  process,  to  identify  and  remedy shortcomings  and  improve 
consistency. 

(29)  The  competence  centre  would  publish  the  results of  the  essentiality  checks,  whether 
positive  or  negative,  in  the  register  and  the  database. The  results  of  the  essentiality 
checks  would  not  be  legally  binding.  Thus,  any  subsequent  disputes  with  regard  to 
essentiality  would  have  to  be  addressed  in  the  relevant  court.  The  results  from  the 
essentiality  checks,  whether  requested  by  a  SEP  holder or  based  on  a  sample,  may, 
however, be  used  for  the  purpose  of  demonstrating  essentiality  of  those  SEPs  in 
negotiations, in patent pools and in court. 

(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. 

(31)  The  purpose  of  the  FRAND  commitment  is  to  facilitate  adoption  and  use  of  the 
standard by making SEPs available to implementers on fair and reasonable terms and 

EN 

20 

  EN 

to  provide the  SEP  holder  a  fair  and  reasonable  return  for  its  innovation.  Thus,  the 
ultimate  goal  of  enforcement  actions  by  SEP  holders or  actions  brought  by 
implementers  based  on  a  SEP  holder’s  refusal  to  license  should  be  to  conclude  a 
FRAND licence agreement. The main objective of the Regulation in this regard is to 
facilitate  the  negotiations  and  out  of  court  dispute  resolution  that  can  benefit  both 
parties. Ensuring access to swift, fair and cost-efficient ways of resolving disputes on 
FRAND terms and conditions should benefit SEP holders and implementers alike. As 
such,  a  properly  functioning  out-of-court  dispute  resolution  mechanism  to  determine 
FRAND terms (FRAND determination) may offer significant benefits for all parties. A 
party  may  request  a  FRAND  determination  in  order  to  demonstrate  that  its  offer  is 
FRAND or to provide a security, when they engage in good faith. 

(32)  The  FRAND  determination  should  simplify  and  speed  up  negotiations  concerning 
FRAND  terms  and  reduce  costs.  The  EUIPO  should  administer  the  procedure.  The 
competence  centre  should  create  a  roster  of  conciliators  that  satisfy  established 
competence  and  independence  criteria,  as  well  as  a  repository  of  non-confidential 
reports  (the  confidential  version  of  the  reports  will  be  accessible  only  by  the  parties 
and  the  conciliators).  The  conciliators  should  be  neutral  persons  with  extensive 
experience  in  dispute  resolution  and  substantial  understanding  of  the  economics  of 
licensing on FRAND terms and conditions. 

(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.  

(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 
the  other  party  should  be  able 
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. 

the termination  or 

request  either 

to 

(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, 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 

EN 

21 

  EN 

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. 

(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 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. 

(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.  

(38)  The  conciliator  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 conciliator, 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. 

(39) 

(40) 

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. 

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 party. 

(41)  At the  conclusion  of  the  procedure,  the  conciliator  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 conciliator 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 

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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. 

(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  

(43)  The FRAND determination is also consistent with the right to an effective remedy and 
to access to justice as laid down in Article 47 of the Charter of Fundamental Rights of 
the European Union as the implementer and the SEP holder fully retain that right.  In 
case of failure to register within the prescribed time limit, the exclusion of the right to 
effective  enforcement  is  limited  and  necessary  and  meets  objectives  of  general 
interest. As confirmed by the CJEU41, the provision of a mandatory dispute resolution 
as a  precondition  to  access  to  competent  courts  of  Member  States is  deemed  to  be 
compatible  with 
judicial  protection.  The FRAND 
determination follows the conditions for mandatory dispute resolution outlined in the 
CJEU judgments, taking into account the particular characteristics of SEP licensing. 

the  principle  of  effective 

(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 

39 

40 

41 

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. 
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. 
Judgment of the Court of Justice of 18 March 2010, Rosalba Alassini v Telecom Italia SpA (C-317/08), 
Filomena  Califano  v  Wind  SpA  (C-318/08),  Lucia  Anna  Giorgia  Iacono  v  Telecom  Italia  SpA  (C-
319/08)  and  Multiservice  Srl  v  Telecom  Italia  SpA  (C-320/08),  Joined  cases  C-317/08, C-318/08,  C-
319/08  and  C-320/08,  EU:C:2010:146,  and  judgement  of  the  Court  of  Justice  of  14  June  2017,Livio 
Menini  and  Maria  Antonia  Rampanelli  v  Banco  Popolare  –  Società  Cooperativa,  C‑75/16, 
EU:C:2017:457 

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Regulation,  the Horizontal  Guidelines42 and  the  Commission’s  2017  Communication 
‘Setting  out  the  EU  approach  to  Standard  Essential  Patents’.43Furthermore,  the 
conciliators  should  consider  any  expert  opinion  on  the  aggregate  royalty  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. 

(45)  SEP licensing may cause friction in the value chains that have so far not been exposed 
to  SEPs.  It  is,  therefore,  important  that  the  competence  centre  raises  awareness 
concerning  SEP  licensing  in  the  value  chain  through  any  of  the  tools  at  its  disposal. 
Other factors would include the ability of upstream manufacturers to pass the cost of a 
SEP licence downstream and any potential impact of existing indemnification clauses 
within a value chain. 

(46)  SMEs may be involved in SEP licensing both as SEP holders and implementers. While 
there  are  currently  a  few  SME  SEP  holders,  the  efficiencies  produced  with  this 
Regulation are likely to facilitate the licensing of their SEP. Additional conditions are 
necessary to relieve the cost burden on such SMEs such as reduced administration fees 
and potentially reduced fees for essentiality checks and conciliation in addition to free 
support  and  trainings.  The  SEPs  of  micro  and  small  enterprises  should  not  be  the 
subject of sampling for essentiality check, but they should be able to propose SEPs for 
essentiality  checks  if  they  wish  to.  SME  implementers  should  likewise  benefit  from 
reduced  access  fees  and  free  support  and  trainings.  Finally,  SEP  holders should  be 
encouraged  to  incentivise  licensing  by  SMEs  through  low  volume  discounts  or 
exemptions from FRAND royalties. 

(47) 

In order to supplement certain non-essential elements 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. 

(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 

42 

43 

44 

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) 
Communication  on  Setting  out  the  EU  approach  to  Standard  Essential  Patents,  COM(2017)712  final, 
29.11.2017. 
OJ L 123, 12.5.2016, p. 1. 

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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 

(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.  

(50)  The  European  Data  Protection  Supervisor  was  consulted  in  accordance  with  Article 
42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council.47 

(51)  As EUIPO, the Commission and stakeholders should be given time to prepare for the 

implementation and application of this Regulation, its application should be deferred. 

(52)  Since  the  objectives  of  this  Regulation  to  increase  transparency  with  regard  to  SEP 
licensing and to provide an efficient mechanism to resolve disagreements on FRAND 
terms and conditions cannot be sufficiently achieved by the Member States because of 
multiplication  of  costs  but  can  rather,  by  reason  of  efficiencies  and  scale,  be  better 
achieved  at  Union  level,  the  Union  may  adopt  measures,  in  accordance  with  the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality  as  set  out  in  that  Article,  this 
Regulation does not go beyond what is necessary in order to achieve those objectives. 

HAVE ADOPTED THIS REGULATION: 

Title I 
General Provisions 

Article 1 

Subject matter and scope 

1. 

This  Regulation  establishes  the  following  rules  on  patents essential  to  a standard 
(‘SEPs’): 

(a) 

rules providing for enhanced transparency with regard to information necessary 
for SEP licensing; 

(b) 

rules on the registration of SEPs; 

45 

46 

47 

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.) 
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.) 
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the 
protection of natural persons with regard to the  processing of personal data by the Union institutions, 
bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 
45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39.) 

EN 

25 

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(c) 

(d) 

a procedure to evaluate the essentiality of registered SEPs; 

a  procedure  for  the  amicable  settlement  of  disputes related  to  fair,  reasonable 
and  non-discriminatory  nature  of 
(‘FRAND 
determination’); 

terms  and  conditions 

(e) 

competences  for  the  EUIPO  for  the  fulfilment  of  the  tasks  set  out  in  this 
Regulation. 

This  Regulation  shall  apply  to  patents  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, 

(a) 

after  the  entry  into  force  of  this  Regulation,  with  the  exceptions  provided  in 
paragraph 3; 

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

Articles 17 and 18 and Article 34(1) shall not apply to SEPs to the extent that they 
are  implemented  for  use  cases  identified  by  the  Commission  in  accordance  with 
paragraph 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 such use cases, standards or 
parts thereof, for the purposes of paragraph 3.  

This  Regulation  shall  apply  to  holders  of  SEP  in  force  in  one  or  more  Member 
States. 

This  Regulation  shall  not  apply  to  claims  of  invalidity  or  claims  of  infringement 
unrelated to the implementation of a standard notified under this Regulation. 

This  Regulation  is  without  prejudice  to  the  application  of  Articles  101  and  102 
TFEU or to the application of corresponding national competition law rules. 

2. 

3. 

4. 

5. 

6. 

7. 

Article 2 

Definitions 

For the purposes of this Regulation, the following definitions shall apply: 

(1) 

(2) 

(3) 

‘standard essential patent’ or ‘SEP’ means any patent that is essential to a standard; 

‘essential to a standard’ means that the patent contains at least one claim for which it 
is  not  possible on  technical  grounds  to  make  or  use  an  implementation  or  method 
which  complies with  a  standard,  including  options  therein,  without  infringing  the 
patent under the current state of the art and normal technical practice; 

(‘standard’  means  a  technical  specification,  adopted  by  a  standard  development 
organisation,  for  repeated  or  continuous  application,  with  which  compliance  is  not 
compulsory; 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

(11) 

(12) 

(13) 

(14) 

(15) 

(16) 

(17) 

48 

‘technical specification’ means a document that prescribes technical requirements to 
be  fulfilled  by  a  product,  process,  service  or  system  as  defined  in  Article  2  of 
Regulation (EU) No 1025/2012 of the European Parliament and of the Council48; 

‘standard  development  organisation’ means  any  standardising  body  that  is  not  a 
private  industrial  association developing  proprietary  technical  specifications,  that 
develops technical  or  quality  requirements  or  recommendations  for  products, 
production processes, services or methods; 

‘SEP holder’ means an owner of a SEP or a person holding an exclusive licence for a 
SEP in one of more Member States; 

‘implementer’  means  a  natural  or  legal  person  that  implements,  or  intends  to 
implement, a standard in a product, process, service or system; 

‘FRAND terms and conditions’ means fair, reasonable and non-discriminatory terms 
and conditions of licensing SEPs; 

‘FRAND  determination’  means  a structured procedure  for  the  determination  of  the 
FRAND terms and conditions of a SEP licence; 

‘aggregate royalty’ means the maximum amount of royalty for all patents essential to 
a standard; 

‘patent  pool’  means  an  entity  created  by  an  agreement  between  two  or  more  SEP 
holders to license one or more of their patents to one another or to third parties; 

‘peer evaluation’ means a process for the re-examination of the preliminary results of 
essentiality  checks  by  evaluators  other  that  those  that  carried  out  the  original 
essentiality check; 

‘claim  chart’  means  a  presentation  of correspondence  between  the  elements 
(features)  of  one  patent  claim and  at  least  one  requirement  of  a  standard  or 
recommendation of a standard; 

‘requirement  of  a  standard’  means  expression,  in  the  content  of  a  document,  that 
conveys objectively verifiable criteria to be fulfilled and from which no deviation is 
permitted if conformance with the document is to be claimed; 

‘recommendation of a standard’ means expression, in the content of a document, that 
conveys  a  suggested  possible  choice  or  course  of  action deemed  to  be  particularly 
suitable without necessarily mentioning or excluding others; 

‘patent family’ means a collection of patent documents that cover the same invention 
and whose members have the same priorities; 

‘stakeholder’  means  any  person  that  can  demonstrate  a  legitimate interest  in  SEPs, 
including a  SEP  holder,  an  implementer,  an  agent  for  a  SEP  holder or  an 
implementer,  or  an  association  representing  the  interests  of  SEP  holders and 
implementers; 

Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on 
European  standardisation,  amending  Council  Directives  89/686/EEC  and  93/15/EEC  and  Directives 
94/9/EC,  94/25/EC,  95/16/EC,  97/23/EC,  98/34/EC,  2004/22/EC,  2007/23/EC,  2009/23/EC  and 
2009/105/EC  of  the  European  Parliament  and  of  the  Council  and  repealing  Council  Decision 
87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 
14.11.2012, p. 12.). 

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(18) 

´competence centre’  means  the  EUIPO  administrative  units  that  fulfil  the  tasks 
entrusted to EUIPO under this Regulation. 

Title II 
Competence centre 

Article 3 

Tasks of the competence centre 

1. 

2. 

The  tasks  under  this  Regulation  shall  be  performed  by  a  competence  centre 
established within the EUIPO with the necessary human and financial resources. 

The  competence  centre  shall  support  transparency  and  FRAND  determination  in 
relation to SEPs and shall perform the following tasks: 

(a) 

set up and maintain an electronic register and an electronic database for SEPs; 

(b) 

set up and manage rosters of evaluators and conciliators; 

(c) 

set up and administer a system for assessment of the essentiality of SEPs; 

(d) 

set up and administer the process for the FRAND determination; 

(e) 

(f) 

provide training to evaluators and conciliators; 

administer a process for aggregate royalty determination; 

(g) 

enhance transparency and information sharing through: 

(i) 

(ii) 

publishing  the  results  and  reasoned  opinions of  the  essentiality  checks 
and non-confidential reports of the FRAND determinations; 

enabling access  to  case-law (including alternative dispute resolution) on 
SEPs, including from third country jurisdictions; 

(iii)  compiling  non-confidential 

information  on  FRAND  determination 

methodologies and FRAND royalties; 

(iv)  enabling access to SEP-related rules of third countries; 

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

(i) 

(j) 

conduct studies and any other necessary activities to support the objectives of 
this Regulation; 

raise  awareness  about  SEP  licensing,  including  SEP  licensing  in  the  value 
chain. 

3. 

Using  the  powers  conferred  by  Article  157  of  Regulation  (EU) 2017/1001,  the 
Executive Director of the EUIPO shall adopt the internal administrative instructions 
and  shall  publish  the  notices  that  are  necessary  for  the  fulfilment  of  all  the  tasks 
entrusted to the competence centre by this Regulation. 

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Title III 
Information on SEP made available through the competence 
centre 

Chapter 1 
General Provisions 

Article 4 

Register of standard essential patents 

1. 

2. 

3. 

A Union register for SEPs ('the register') is established. 

The register shall be maintained in electronic format by the competence centre. 

The register shall contain the following entries: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

information on relevant standards; 

registered SEPs identification, including the country of registration and patent 
number; 

the standard version, the technical specification and the specific sections of the 
technical specification for which the patent is considered essential; 

reference  to  the  terms  of  the  SEP  holder’s  FRAND  licensing  commitment  to 
the standard development organisation; 

name, address and contact details of the SEP holder; 

if  the  SEP  holder is  part  of  a  group  of  companies,  the  name,  address  and 
contact details of the parent company; 

(g)  name, address and contact details of the SEP holder’s legal representatives in 

the Union, where relevant; 

(h) 

(i) 

the  existence  of  any  public  standard  terms  and  conditions,  including SEP 
holder’s royalty and discount policies; 

the existence of any public standard terms and conditions for SEP licensing to 
SMEs; 

(j) 

availability for licensing through patent pools, where applicable; 

(k) 

contact details for licensing, including licensing entity; 

(l) 

the date of registration of the SEP in the register and the registration number. 

4. 

The register shall also contain the following entries, each accompanied by the date of 
recording of such entry: 

(a) 

(b) 

(c) 

changes in the contact details of entries referred to in paragraph (3), points (e), 
(f), (g) and (k); 

the  grant  or  transfer  of  a  licence  through patent  pools,  where  applicable 
pursuant to Article 9;  

information  on  whether  an  essentiality  check  or  peer  evaluation  have  been 
performed and reference to the result; 

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29 

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5. 

6. 

7. 

1. 

2. 

(d) 

(e) 

(f) 

(g) 

(h) 

(i) 

(j) 

information on whether the SEP is expired or invalidated by a final judgment 
of a competent court of a Member State; 

particulars  regarding  proceedings  and  decisions  on  SEPs  pursuant  to  Article 
10; 

date of publication of information pursuant to Article 19(1) in conjunction with 
Article 14(7), Article 15(4) and Article 18(11); 

the date of suspension of the SEP from the Register pursuant to Article 22; 

corrections of the SEP, pursuant to Article 23; 

the date of removal of the SEP from the register pursuant to Article 25 and the 
grounds for removal; 

the correction to or removal from the register of the item referred to in points 
(b), (e) and (f). 

The  Commission  is  empowered  to  adopt  delegated  acts  in  accordance  with Article 
67, amending paragraphs (3) and (4) to determine items other than those referred to 
in paragraphs (3) and (4) that are to be entered in the Register for the purposes of this 
Regulation. 

The  competence  centre  shall  collect,  organise,  make  public  and  store  the  items 
referred to in paragraphs (3) and (4), including any personal data for the purposes of 
this Regulation. 

The competence centre shall keep the register easily accessible for public inspection. 
The  data shall  be  considered  to  be  of  public  interest  and  may  be  accessed  by  any 
third party free of charge. 

Article 5 

Electronic database 

The competence centre shall establish and maintain an electronic database for SEPs. 

The  following  information  in  the  database  shall be  accessible  to  any  third  party 
subject to the registration with the competence centre: 

(a) 

patent bibliographic data on the claimed SEP or SEP, including priority  date, 
family members, grant date and expiration date; 

(b)  public  standard  terms  and  conditions,  including SEP  holder’s  royalty and 

discount policies pursuant to Article 7, first paragraph, point (b), if available; 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

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

information  regarding  known  products,  processes,  services  or  systems  and 
implementations pursuant to Article 7, first paragraph, point (b); 

information pertaining to essentiality pursuant to Article 8; 

non-confidential  information  on  FRAND  determinations  pursuant  to  Article 
11; 

information on aggregate royalties pursuant to Articles 15, 16 and 17; 

expert opinions referred to in Article 18; 

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30 

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(i) 

(j) 

(k) 

non-confidential reports of the conciliators pursuant to Article 57; 

SEPs  selected  for  essentiality  checks  pursuant  to  Article  29,  the  reasoned 
opinions or the final reasoned opinions pursuant to Article 33; 

the date and the grounds for removal of the SEP from the database pursuant to 
Article 25; 

(l) 

information on SEP related rules in third countries pursuant to Article 12; 

(m)  case-law and reports pursuant to Article 13(3) and (5); 

(n) 

awareness raising and training materials. 

Access  to  the  information  pursuant  to  paragraph  (2),  points  (f),  (h),  (i),  (j)  and 
(k) may be subject to the payment of a fee. 

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. 

Article 6 

Common provisions on the register and the database 

When a party requests that data and documents of the database be kept confidential, 
that party  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. The competence centre may disclose that 
non-confidential version. 

The  competence  centre  shall  keep  the  files  of  any  procedure  relating  to  the 
registration  of  the  SEP.  The  Executive  Director  of  the  EUIPO  shall  determine  the 
form in which those files shall be kept and made available. The competence centre 
shall keep the files for 10 years after the removal of the registration of the SEP. Upon 
request,  personal  data  may  be  removed  from  the  register  or  the  database  after  18 
months from the expiry of the SEP or removal of the SEP from the register. 

The competence centre may correct any information contained in the register or the 
database pursuant to Article 23. 

The  SEP  holder and  its  legal  representative  in  the  Union  shall  be  notified  of  any 
change in the register or the database when that change concern a particular SEP. 

Upon request,  the competence centre shall issue registration certificates or  certified 
copies  of  the  data  and  documents  in  the  register  or  the  database.  The  registration 
certificates and certified copies may be subject to the payment of a fee. 

The Commission shall determine the conditions of access to the database, including 
the fees for such access, or for registration certificates and certified copies from the 
database  or  the  register,  by  means  of an  implementing  act. The  implementing  act 
shall be adopted in accordance with the examination procedure referred to in Article 
68(2). 

3. 

4. 

1. 

2. 

3. 

4. 

5. 

6. 

Identification of implementations of a standard and related SEP licensing terms and 
conditions 

Article 7 

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A SEP holder shall provide to the competence centre the following information: 

(a) 

information  as  regards  the products,  processes,  services  or  systems  in  which 
the subject-matter of the SEP may be incorporated or to which it is intended to 
be  applied,  for  all  existing  or  potential  implementations  of  a  standard,  to  the 
extent such information is known to the SEP holder. 

(b)  where available, its standard terms and conditions for SEP licensing, including 
its  royalty and  discount  policies,  within  7 months  from  the  opening  of  the 
registration  for  the  relevant  standard  and  implementation  by  the  competence 
centre. 

Article 8 

Information pertaining to essentiality 

A SEP holder shall provide to the competence centre the following information to be included 
in the database and referenced in the register: 

(a) 

(b) 

a final decision on essentiality for a registered SEP made by a competent court 
of a Member State within 6 months from the publication of such decision. 

any  essentiality  check  prior  to [OJ:  please  insert  the  date  =  24  months  from 
entry into force of this regulation] by an independent evaluator in the context 
of  a  pool, identifying  the  SEP  registration  number, the  identity  of  the  patent 
pool and its administrator, and the evaluator. 

Article 9 

Information to be provided by patent pools 

Patent pools shall publish on their websites at least the following information and inform the 
competence centre thereof: 

(a) 

standards subject to collective licensing; 

(b) 

the administrative entity’s shareholders or ownership structure; 

(c) 

process for evaluating SEPs; 

(d) 

roster of evaluators having residence in the Union; 

(e) 

(f) 

(g) 

list of evaluated SEPs and list of SEPs being licensed; 

illustrative cross-references to the standard; 

list of products, services and processes that may be licensed through the patent 
pool or the entity; 

(h) 

royalties and discount policy per product category; 

(i) 

(j) 

standard licence agreement per product category; 

list of licensors in each product category; 

(k) 

list of licensees for each product category. 

Article 10 

Information on decisions on SEPs 

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1. 

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

(a) 

injunctions; 

(b) 

infringement proceedings; 

(c) 

essentiality and validity; 

(d) 

abuse of dominance; 

2. 

1. 

2. 

1. 

2. 

1. 

2. 

(e) 

determination of FRAND terms and conditions. 

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

Article 11 

Information on FRAND determinations 

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. 

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

Article 12 

Information on SEP related rules in third countries 

The competence centre shall  collect and publish in the database information on any 
SEP related rules in any third country. 

Any  person  may  provide  the  competence  centre  with  such  information  as  well  as 
information on updates, corrections and public consultations. The competence centre 
shall publish that information in the database. 

Article 13 

Enhancing transparency and information sharing 

The  competence  centre  shall store  in  the  database  all  the  data  provided  by 
stakeholders, as well as opinions and reports of evaluators and conciliators. 

The collection, storage and processing of such data shall serve the purposes of: 

(a) 

(b) 

administering  the  registrations  of  SEPs,  essentiality  checks  and  conciliation 
proceedings pursuant to this Regulation; 

accessing  the  information  necessary  for  conducting  those  proceedings  more 
easily and efficiently; 

(c) 

communicating with the parties to the proceedings; 

EN 

33 

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3. 

4. 

5. 

6. 

1. 

2. 

3. 

(d)  producing reports and statistics enabling the competence centre to improve its 
operations and the functioning of the registration of SEPs and the proceedings 
under this Regulation. 

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

to 

it  pursuant 

The  competence  centre  shall  collect  all  information  on  FRAND  terms  and 
conditions,  including  any  discounts,  which  have  been  made  public  by  SEP 
holders, disclosed 
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. 

to Article  11 and 

included in 

The  competence  centre  shall  publish  in  the  database  an  annual  report  on 
methodologies  for  FRAND  determinations  based  on  information  from  court  and 
arbitration  decisions  and  statistical  information  on  licences  and  licensed  products 
from the FRAND determinations. 

Upon a  reasoned  request  by  a  stakeholder,  any  confidential  information  shall  be 
redacted  in  a  non-confidential  format  before  the  competence  centre  publishes  or 
transmits such information. 

Chapter 2 
Notification of a standard and an aggregate royalty 

Article 14 

Notification of a standard to the competence centre 

Holders of  a  patent in  force  in  one  or  more  Member  States  which  is  essential to  a 
standard  for  which  FRAND commitments  have been  made  shall  notify  to  the 
competence centre, where possible through the standard development organisation or 
through a joint notification, the following information: 

(a) 

the commercial name of a standard; 

(b) 

the list of relevant technical specifications that define the standard; 

(c) 

(d) 

the date of the publication of the latest technical specification; 

implementations  of  the  standard  known  to  the  SEP  holders making  the 
notification. 

Such  notification  shall  be  made within  30 days  of  the  publication  of  the  latest 
technical specification. 

In the absence of the notification under paragraph (1), any holder of a SEP in force in 
one or more Member State shall notify individually, no later than 90 days from the 
publication  of  the  latest  technical  specification, to  the  competence  centre  the 
information referred to in paragraph (1). 

EN 

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  EN 

4. 

5. 

6. 

7. 

1. 

2. 

In  the  absence  of  notification  under paragraph  (1) or  under paragraph  (3)  any 
implementer  may  notify,  to  the  competence  centre  the  information  referred  to 
in paragraph (1). 

The  competence  centre  shall  also  notify  the  relevant  standard  development 
organisation of the publication. In case of notification pursuant to paragraphs (3) and 
(4), it shall also  notify,  where possible, known  SEP holders individually or request 
confirmation from the standard development organisation that it has duly notified the 
SEP holders. 

The  competence  centre  shall  publish  on  the  EUIPO  website  the  notifications  made 
pursuant  to paragraphs  (1),  (3)  and  (4) for  comments  by  stakeholders. Stakeholders 
may submit  their  comments  to  the  competence  centre  within  30  days  from  the 
publication of the list. 

After expiry of the time limit referred to in paragraph (6) the competence centre shall 
consider  all  comments  received  including  all  relevant  technical  specifications  and 
implementations and publish the information pursuant to paragraph (1). 

Notification of an aggregate royalty to the competence centre 

Article 15 

Holders  of  SEPs 
for  which 
FRAND commitments have been made may jointly notify the competence centre the 
aggregate royalty for the SEPs covering a standard. 

in  one  or  more Member  States 

force 

in 

The notification made in accordance with paragraph (1) shall contain the information 
on the following: 

(a) 

the commercial name of the standard; 

(b) 

the list of technical specifications that define the standard; 

(c) 

(d) 

(e) 

(f) 

(g) 

the names of the SEP holders making the notification referred to in paragraph 
(1);  

the estimated percentage the SEP holders referred to in paragraph (1) represent 
from all SEP holders; 

the estimated percentage of SEPs they own collectively from all SEPs for the 
standard; 

the implementations known to the SEP holders referred to in point (c); 

the  global  aggregate  royalty,  unless  the  notifying  parties  specify  that  the 
aggregate royalty is not global;  

(h) 

any period for which the aggregate 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  publication  of  a  standard  by  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. 

EN 

35 

  EN 

4. 

1. 

2. 

1. 

2. 

The competence centre shall publish in the database the information provided under 
paragraph (2). 

Article 16 

Revision of aggregate royalty 

In  case  of  revision  of  the  aggregate  royalty,  the  SEP  holders shall  notify the 
competence  centre  about  the  revised  aggregate  royalty  and  the  reasons  for  the 
revision. 

The competence centre shall publish in the database the initial aggregate royalty, the 
revised aggregate royalty and the reasons for the revision in the register. 

Article 17 

Process for facilitating agreements on aggregate royalty determinations 

Holders of SEPs in force in one or 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. 

Such a request shall be made no later than 90 days following the publication of the 
standard or no later than 120 days following the first sale of new implementation on 
the  Union market  for  implementations  not  known  at  the  time  of  publication  of  the 
standard. 

3. 

The request shall contain the following information: 

(a) 

(b) 

the commercial name of the standard; 

the  date  of  publication  of  the  latest  technical  specification  or  the  date  of  the 
first sale of new implementation on the Union market; 

(c) 

the implementations known to the SEP holders referred to in paragraph (1); 

(d) 

the names and contact details of the SEP holders supporting the request; 

(e) 

the estimated percentage of SEPs they own individually and collectively from 
all potential SEPs claimed for the standard. 

The  competence  centre  shall  notify  the  SEP  holders  referred  to  in paragraph  (3), 
point (d) and request them to express their interest in participating in the process and 
to provide their estimated percentage of SEPs from all SEPs for the standard. 

The competence centre shall appoint a conciliator from the roster of conciliators and 
inform all SEP holders that expressed interest to participate in the process. 

SEP  holders  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. 

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. 

If the contributors agree on a joint notification, the procedure set out in Article 15(1), 
(2) and (4) shall apply. 

4. 

5. 

6. 

7. 

8. 

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Article 18 

Non-binding expert opinion on aggregate royalty 

1. 

2. 

A  SEP  holder  or  an  implementer  may  request  the  competence  centre  for  a  non-
binding expert opinion on a global aggregate royalty. 

The request referred to in paragraph (1) shall be made no later than 150 days after: 

(a) 

the publication of the relevant standard for known implementations; or 

(b)  new implementations are first sold on the Union market. 

3. 

That request shall include: 

(a) 

commercial name of the standard; 

(b) 

list of relevant technical specifications that define the standard; 

(c) 

list of relevant products, processes, services or systems or implementations; 

(d) 

list of known stakeholders and contact details. 

4. 

5. 

6. 

7. 

8. 

competence 

centre shall  notify 

The 
standard  development 
organisation and all known stakeholders of the request. It shall publish the request on 
EUIPO's website  and  invite  stakeholders  to  express interest  in  participating  in  the 
process within 30 days from the day when the request was published. 

relevant 

the 

Any stakeholder may request to participate in the process after explaining the basis 
of its interest. SEP holders shall provide their estimated percentage of those SEPs of 
all  SEPs  for  a  standard.  Implementers  shall  provide  information  on  any  relevant 
implementations of the standard, including any relevant market share in the Union.  

If the requests for participation include SEP holders representing collectively at least 
an estimated 20% of all SEPs for the standard, and implementers holding collectively 
at least 10% relevant market share in the Union or at least 10 SMEs, the competence 
centre  shall  appoint  a  panel  of  three  conciliators  selected  from  the  roster  of 
conciliators with the appropriate background from the relevant field of technology. 

Stakeholders  that  submit  to  the  panel 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. 

Following the appointment, the panel shall request the participating SEP holders to, 
within one month: 

(a) 

(b) 

propose  an  aggregate  royalty,  including  the  information  referred  to  in  Article 
15(2), or 

submit justification on the impossibility to propose an aggregate royalty due to 
technological, economic, or other considerations. 

9. 

The  panel  shall  duly  consider  the  submissions  provided  for  in  paragraph  8  and 
decide: 

(a) 

to  suspend  the  procedure  for  the  expert  opinion  on  aggregate  royalty  for  an 
initial period of no longer than 6 months, which can be further extended on the 
basis of a duly justified request by one of the participating SEP holders, or 

(b) 

to provide the expert opinion. 

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10. 

11. 

12. 

13. 

1. 

2. 

1. 

2. 

3. 

The  panel  shall  provide  the  expert  opinion  within  8 months  of  the  end  of  the 
suspension  period  pursuant  to  paragraph  8(a)  or  of  the  decision  referred  to  in 
paragraph  8(b).  The  opinion  shall  be  supported  by  at  least  two  of  the  three 
conciliators. 

1The  expert  opinion  shall  include  a  summary  of  the  information  provided  in  the 
request, the information referred to in Article 15(2), the names of the conciliators, the 
procedure,  the  reasons  for  the  opinion  on  the  aggregate  royalty  and  the  underlying 
methodology. The reasons for any divergent views shall be specified in an annex to 
the expert opinion. 

The  expert  opinion  shall  include  an  analysis  of  the  value  chain  concerned  and  the 
potential  impact  of  the  aggregate  royalty  on  the  innovation  incentives  of  both  SEP 
holders and stakeholders in the value chain where licensing is to take place. 

The competence centre shall publish the expert opinion and notify the participants of 
that publication. 

Chapter 3 
Registration of SEPs 

Article 19 

Administration of the register of standard essential patents 

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: 

(a) 

publication  by  the  competence  centre  of  the  standard  and  related  information 
pursuant to Article 14(7); 

(b)  publication  by  the  competence  centre  of  an  aggregate  royalty  and  related 

information pursuant to Article 15(4) and Article 18(11). 

The  competence  centre  shall  publish  a  notice  on  the  EUIPO website informing 
stakeholders that an entry in the register has been made and refer to the publications 
referred to in paragraph (1). The competence centre shall notify known SEP holders 
relevant  standard  development 
individually  by  electronic  means  and 
organisation of the notice in this paragraph. 

the 

Article 20 

Registration of standard essential patents 

Upon request of a SEP holder the competence centre shall register any patent in force 
in one or more Member States and falling within the scope of this Regulation that is 
essential  for  a  standard,  for  which  the  competence  centre  has  published  a  notice 
pursuant to Article 19(2). 

For  a SEP  to  be  included  in  the  register,  at  least  one patent  claim  shall  correspond 
with  at  least  one  requirement  or  recommendation  to  the  standard,  identified  by 
standard name, version (and/or release) and sub-clause. 

The request  for registration shall be made within 6 months from the publication of 
the notice pursuant to Article 19(2). In case the SEP is only granted by a national or 
European patent office after the  publication of the notice pursuant  to  Article 19(2), 

EN 

38 

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4. 

5. 

6. 

1. 

2. 

1. 

2. 

3. 

4. 

5. 

the request for registration shall be made within 6 months from the grant of the SEP 
by the relevant patent office. 

The  request  shall  include  the  information  set  out  in Article  4(3) and  Article  5(2), 
points (a), (b), (d) and (e). 

A  SEP  holder shall  update  the  information  in  the  register  and  database  to  reflect 
relevant changes in relation to its registered SEP by notifying the competence centre 
within 6 months from the change occurring. 

The  request  for  registration  will  only  be  accepted  following  the  payment  of  the 
registration fee by the SEP holder. The Commission shall determine the registration 
fee  in  the  implementing  act  issued  based  on  Art.  63(5).  The  registration  fee  shall 
include, in case of medium and large enterprises, the expected costs and fees of the 
essentiality check for SEPs selected pursuant to Article 29(1). 

Article 21 

Date of registration 

The  date  of  registration  shall  be  the  date  on  which  the  competence  centre  has 
received a registration request pursuant to Article 20(2), (4) and (5) . 

The  competence  centre  shall  publish  the  registered  SEPs  in  the  register within  7 
working days from the date of registration. 

Article 22 

Examination of the conditions of registration 

A  sample  of  SEP  registrations  shall  be  checked  annually  for  completeness  and 
correctness. 

The EUIPO shall adopt a methodology for selecting a sample of SEP registrations for 
checks. 

Where the registration does not contain the information in accordance with Articles 4 
and 5 or contains incomplete or inaccurate information, the competence centre shall 
request the SEP holder to provide the complete and accurate information within the 
set time limit of no less than 2 months. 

If  the  SEP  holder fails  to  provide  the  correct  and  complete information,  the 
registration  shall be  suspended  from 
the 
incompleteness or inaccuracy is remedied.  

the  register,  until  such 

time  as 

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. 

6. 

Any completing or correcting information on a SEP pursuant to this article shall be 
made free of charge. 

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39 

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1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Article 23 

Correction of an entry in the register or information in the database 

A SEP holder may request a correction of its SEP registration or of the information 
contained in the database by filing an appropriate request to the competence centre, 
except as provided for in paragraph (2). 

Any third party may request the competence  centre to correct  a SEP registration or 
information  contained  in  the  database.  The  request  shall  contain  the  following 
information: 

(a) 

the name and contact details of the requesting person; 

(b) 

the registration number of the registered SEP; 

(c) 

the reasons for the request; 

(d) 

evidence from an independent source supporting the request. 

The competence centre shall notify the request to the SEP holder and invite the SEP 
holder to  correct  the  entry  in  the  register  or  the  information  submitted  for  the 
database, where relevant within a time limit no less than 2 months. 

The  competence  centre  shall  notify the  SEP  holder and  invite  the  SEP  holder to 
correct the entry in the register or the information submitted for the database, where 
relevant  within  a  time  limit  no  less  than  2  months,  when  the  competence  centre  is 
informed  by  a  competent  court of  a  Member  State  pursuant  to Article  10(1) or  a 
patent office or any third party of: 

(a) 

the expiry of a registered SEP 

(b) 

the invalidation of a registered SEP by a competent authority; or 

(c) 

a  final  judgment  that  the  registered  SEP  is  not  essential  to  the  relevant 
standard. 

If the SEP holder fails to correct the entry in the register or the information submitted 
for the database within the given time limit, the registration shall be suspended from 
the register, until such time as the incompleteness or inaccuracy is remedied.  

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. 

The treatment of requests for correction pursuant to This article by the competence 
centre  shall  be  suspended  from  the  selection  of  the SEP  for  essentiality  check 
pursuant  to Article  29 until  the  publication  of  the  result of  the  essentiality check  in 
the register and the database pursuant to Article 33(1). 

The  competence  centre  may  correct  any  linguistic  errors  or  errors  of  transcription 
and manifest oversights or technical errors attributable to it in the register and in the 
database of its own motion. 

9. 

Any corrections pursuant to this article shall be made free of charge. 

EN 

40 

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1. 

2. 

3. 

4. 

5. 

Article 24 

Effects of absence of registration or suspension of registration of SEPs 

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. 

A SEP holder that has not 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. 

Paragraphs  (1)  and  (2)  are  without  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  amount  and  enforceability  of  the  royalty  or  other  terms  and 
conditions of the contract. 

Paragraphs  (1)  and  (2)  apply  also  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). 

A competent court of a Member 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. 

Article 25 

Removing a SEP from the register and the database 

1. 

A SEP holder may request the removal of its registered SEP from the register and the 
database, on the following grounds: 

(a) 

expiry of the patent; 

(b) 

invalidation of the patent by a competent authority; 

(c) 

(d) 

final  judgment  of  a  competent  court  of  a  Member  State  that  the  registered 
patent is not essential to the relevant standard; 

as  a  consequence  of  a  negative  result  from  the  essentiality  check  pursuant  to 
Article 31(5) and Article 33(1). 

2. 

Such  a  request  may  be  made  at  any  time,  except  from  the  selection  of  the SEP  for 
essentiality  check  pursuant  to Article  29 until  the  publication  of  the  result of  the 
essentiality check in the register and database pursuant to Article 33(1). 

3. 

The competence centre shall remove the SEP from the register and the database. 

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1. 

2. 

3. 

4. 

5. 

1. 

2. 

3. 

4. 

Title IV 
Evaluators and Conciliators 

Article 26 

Evaluators and conciliators  

An evaluator shall conduct essentiality checks. 

A conciliator shall conduct the following tasks: 

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

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

(c) 

serve in a FRAND determination. 

The evaluators and conciliators shall adhere to a code of conduct. 

The competence centre shall appoint [10] evaluators from the roster of evaluators as 
peer evaluators for a period of [three] years. 

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 ,  lay  down  the  practical  and  operational 
arrangements concerning: 

(a) 

the requirements for evaluators or conciliators, including a Code of Conduct; 

(b) 

the procedures pursuant to Articles 17, 18, 31 and 32 and Title VI. 

Article 27 

The selection procedure  

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

The competence centre shall establish a roster of suitable candidates for evaluators or 
conciliators. There may be different rosters of evaluators and conciliators depending 
on the technical area of their specialisation or expertise.  

Where the competence centre has not yet established roster of candidates evaluators 
or conciliators at the moment of the first registrations or FRAND determination, the 
competence centre shall invite ad hoc renowned experts who satisfy the requirements 
set out in the implementing act referred to in Article 26(5). 

The competence centre shall regularly review the rosters that a sufficient number of 
qualified candidates is maintained. 

Title V 
Essentiality checks of standard essential patents 

Article 28 

General requirement for essentiality checks 

EN 

42 

  EN 

1. 

2. 

3. 

4. 

5. 

6. 

1. 

2. 

3. 

4. 

The competence centre shall administer a system of essentiality checks, ensuring that 
they  are  conducted  in  an objective and  impartial manner  and  that  confidentiality  of 
the information obtained is safeguarded 

The essentiality check shall be conducted by an evaluator selected pursuant to Article 
27. Evaluators shall conduct  essentiality  checks  of registered SEPs for the standard 
for which they are registered. 

Essentiality  checks  shall  not  be  done  on  more  than  one  SEP  from  the  respective 
patent family. 

The  lack  of  an  essentiality  check  or  an  ongoing  essentiality  check  shall  not 
preclude licensing negotiations or any court or administrative procedure in relation to 
a registered SEP.  

The evaluator shall summarise the result of the essentiality check and the reasons for 
it in a reasoned opinion, or, in  case of peer evaluation, in a final reasoned opinion, 
which shall not be legally binding. 

The  result  of  the  essentiality  check  conducted  and  the reasoned  opinion  of  the 
evaluator or the final reasoned opinion of the peer evaluator may be used as evidence 
before stakeholders, patent pools, public authorities, courts or arbitrators. 

Article 29 

Administration of essentiality checks  

The  competence  centre  shall  select  annually  a  sample  of  registered  SEPs  from 
different  patent  families  from  each SEP  holder and  with  regard  to  each  specific 
standard in the register for essentiality checks. Registered SEPs of micro and small 
enterprises shall be excluded from the annual sampling process. The checks shall be 
conducted  based  on  a  methodology  that  ensures  the  establishment  of  a  fair  and 
statistically  valid  selection  that  can  produce  sufficiently  accurate  results  about  the 
essentiality  rate  in  all  registered SEPs  of  a  SEP  holder with  regard  to  each  specific 
standard in the register. By [OJ: please insert the date = 18 months from  entry into 
force  of  this  regulation]  the  Commission  shall,  by  means  of  an  implementing  act, 
determine  the  detailed  methodology.  That  implementing  act  shall  be  adopted  in 
accordance with the examination procedure referred to in Article 68(2). 

The  competence  centre shall  notify  the  SEP  holders  about  the  SEPs  selected  for 
essentiality  checks.  Within the  time  limit established  by  the  competence  centre, the 
SEP holders may submit within the same time period a claim chart with a maximum 
amount  of  five  correspondences  between  the  SEP  and  the  relevant  standard, any 
additional  technical  information  that  may  facilitate  the  essentiality  check  and 
translations of the patent requested by the competence centre.  

The competence centre shall publish the list of SEPs selected for essentiality check.  

If  a  SEP  selected  for  essentiality  check  was  already  the  subject  of  a  previous  or 
ongoing essentiality  check  pursuant  to This  title  or  of  an  essentiality  decision  or 
check  referred  to  in Article  8,  no  additional  essentiality  check  shall  be  done.  The 
result  from  the  previous  essentiality  check  or  decision  shall  be  used  for  the 
determination  of  the  percentage  of  sampled  per  SEP  holder and  per  specific 
registered standard that has passed successfully the essentiality check. 

EN 

43 

  EN 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

1. 

2. 

Each SEP holder may voluntarily propose annually up to 100 registered SEPs from 
to 
different  patent 
each specific standard for which SEP registration was made.  

for  essentiality  with 

to  be  checked 

families 

regard 

Any implementer may voluntarily propose annually up to 100 registered SEPs from 
to 
different  patent 
each specific standard for which SEP registrations have been made.  

for  essentiality  with 

to  be  checked 

families 

regard 

The  competence  centre  shall  allocate  the  SEPs  for  essentiality  check  to  evaluators 
based  on  the  roster  of  evaluators  established  pursuant  to  Article  27 and  shall 
provide access  to  the  evaluator  access  to  the  complete  documentation provided  by 
the SEP holder. 

The  competence  centre shall  ensure  that  the  identity  of  the  evaluator remain 
undisclosed to the SEP holders during the examination of the essentiality pursuant to 
Article  31 or  during 
the 
communication  between  the  SEP  holder  and  the  evaluator  shall  pass  through  the 
competence centre. 

the  peer  evaluation  pursuant 

to  Article  32.  All 

In  case  of  failure  to  respect  formal  requirements  pursuant  to  Article  28,  other 
procedural  requirements  or the code of  conduct,  the competence  centre may, at  the 
request  of  any  stakeholder  submitted  within  one month  from  the  publication  of  the 
reasoned  opinion  or  final  reasoned  opinion  or  on  its  own  initiative,  review  the 
examination and decide to: 

(a)  maintain, or 

(b) 

revoke 

the  results  of  examination  of  the  essentiality  of  a  registered  SEP  or  of  the  peer 
evaluation.  

Where  the  competence  centre  revokes  the  results  pursuant  to  paragraph  9(b),  the 
competence centre shall appoint a new evaluator or peer evaluator to conduct a new 
examination of the essentiality check pursuant to Article 31 or new peer evaluation 
pursuant to Article 32. 

The  party  that  requests  the  review  of  the  examination  of  the  essentiality  check  or 
peer evaluation and re-appointment of the evaluator 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 finding of the competence centre. The Boards of Appeal of the EUIPO shall 
either  reject  the  application  or  request  the  competence  centre  to  appoint  a  new 
evaluator and inform the requesting person and, where relevant, the SEP holder 

Article 30 

Observations by stakeholders  

Within  90 days following the publication of  the  list  of registered SEPs selected  for 
sampling, any stakeholder may submit to the competence centre written observations 
concerning the essentiality of the selected SEPs.  

The  observations  referred  to  in  paragraph  (1)  shall  be  communicated  to  the  SEP 
holder who  may  comment  on  them  within  the  time  limit established  by  the 
competence centre. 

EN 

44 

  EN 

3. 

1. 

2. 

3. 

4. 

5. 

The competence centre shall provide the observations and the responses by the SEP 
holder to the evaluator following the expiry of the set time limits. 

Article 31 

Examination of the essentiality of a registered SEP 

The examination of essentiality shall be conducted following procedure that ensures 
sufficient time, rigorousness and high-quality. 

The  evaluator  may  invite  the  SEP  holder concerned to  file  observations,  within  a 
period to be fixed by the evaluator.  

Where an evaluator has  reasons to believe that the SEP may not be essential to the 
standard, the competence centre shall inform the SEP holder of any such reasons and 
specify a period within which the SEP holder may submit its observations, or submit 
an amended claim chart. 

The evaluator shall duly consider any information provided by the SEP holder. 

The  evaluator  shall  issue his  reasoned  opinion  to  the  competence  centre within  6 
months  from  its  appointment. The  reasoned  opinion  shall  include  the  name  of  the 
SEP  holder  and  of  the  evaluator,  the  SEP  subject  to  the  essentiality  check,  the 
relevant  standard,  a  summary  of  the  examination  procedure,  the  result  of  the 
essentiality check and the reasons on which that result is based. 

6. 

The competence centre shall notify the reasoned opinion to the SEP holder. 

Article 32 

Peer evaluation  

1. 

2. 

3. 

4. 

5. 

Where the competence centre has informed the SEP holder pursuant to Article 31(3), 
the SEP holder may request peer evaluation before the expiry of the period to submit 
its observations pursuant to Article 31(3). 

If the SEP holder requests a peer evaluation, the competence centre shall appoint a 
peer evaluator. 

The  peer  evaluator  shall  duly  consider  all  the  information  submitted  by  the  SEP 
holder, the reasons of the initial evaluator why the SEP may not be essential to the 
standard  and  any  amended  claim  chart  or  additional  observations  provided  by  the 
SEP holder. 

In  case  the  peer  evaluation  confirmed  the  preliminary  conclusions  of  the  evaluator 
that  the  evaluated SEP  may  not  be  essential  to  the  standard  for  which  it  was 
registered,  the  peer  evaluator  shall  inform  the  competence  centre  and  provide  the 
reasons  for  this  opinion.  The  competence  centre  shall  inform  the  SEP  holder and 
invite the SEP holder to submit its observations. 

The peer evaluator shall duly consider the observations of the SEP holder and issue a 
final  reasoned  opinion  to  the  competence  centre  within  3 months  from  its 
appointment. The final reasoned opinion shall include the name of the SEP holder, of 
the evaluator and of the peer evaluator, the SEP subject to the essentiality check, the 
relevant standard, a summary of the examination and peer evaluation procedure, the 
preliminary  conclusion  of  the  evaluator,  the  result  of  the  peer  evaluation  and  the 
reasons on which that result is based. 

EN 

45 

  EN 

6. 

7. 

1. 

2. 

3. 

1. 

2. 

3. 

4. 

The competence centre shall notify the final reasoned opinion to the SEP holder. 

The  results  of  the  peer  evaluation  shall  serve  to  improve  the  essentiality  check 
process and ensure consistency. 

Article 33 

Publication of the results of the essentiality checks 

The competence centre shall enter the result of the essentiality check or of the peer 
evaluation in the register and the reasoned opinion and final reasoned opinion in the 
database. The result of the essentiality check under this Regulation shall be valid for 
all SEPs from the same patent family.  

The competence centre shall publish in the register the percentage of sampled SEPs 
per  SEP  holder and  per  specific  registered  standard  that  passed  successfully  the 
essentiality test.  

Where the publication of the results contains an error attributable to the competence 
centre,  the  competence  centre  shall  of  its  own  motion  or  at  the  request  of  the  SEP 
holder registrant correct the error and publish the correction. 

Title VI 
FRAND determination 

Article 34 

Initiation of the FRAND determination 

The FRAND determination in respect of a standard and implementation for which an 
entry  in  the  register  has  been  created,  shall  be initiated  by  any  of  the  following 
persons:  

(a)  SEP  holder, prior  to  any  initiation  of a SEP  infringement  claim  before  a 

competent court of a Member State; 

(b) 

an  implementer  of a  SEP  prior  to  any request for  the  determination  or 
assessment  of FRAND  terms  and  conditions  of  a  SEP  licence before  a 
competent court of a Member State. 

The  party  requesting  the  FRAND  determination  shall  be  referred  to  as  the 
‘requesting party’, any party responding to the request as the ‘responding party’, and 
both shall be referred to as the ‘parties’ for the purposes of FRAND determination. 

The FRAND determination may be initiated by a party or entered into by the parties 
to resolve disputes related to FRAND terms and conditions voluntarily. 

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 

EN 

46 

  EN 

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. 

5. 

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

Article 35 

Rules of procedure 

The  FRAND  determination shall  be  governed  by Article  34 to  Article  58,  as  further 
implemented pursuant to Article 26(5). 

Article 36 

Content of the request to initiate a FRAND determination 

1. 

The FRAND determination shall be initiated by a written request to the competence 
centre that shall contain the following information:  

(a) 

the name and contact information of the requesting party; 

(b) 

the name and address of the responding party; 

(c) 

(d) 

(e) 

(f) 

the registration numbers of the relevant SEPs in the register; 

the commercial name of the standard and the name of the standard developing 
organisation. 

a summary of the licensing negotiations to date, if applicable; 

references to any other FRAND determination, if applicable. 

Where  the  request  to  initiate  a FRAND  determination  is  made  by  a SEP  holder,  in 
addition  to  the  information  listed  in  paragraph  (1),  it  shall  contain  the  following 
information:  

(a) 

claim  charts  mapping  patent  claims  to  the  standard  of  selected  registered 
SEPs;  

(b)  proof of essentiality checks, if available. 

The request to initiate a FRAND determination may include a proposal for a FRAND 
determination. 

Article 37 

Duration of the FRAND determination  

Unless otherwise agreed by the parties, the period from the date of the submission of 
the  request  to  continue  the  FRAND  determination in  accordance  with Article 
38(5)(b) or Article 38(3)(c) or Article 38(4)(a), second sentence, or Article 38(4)(c), 
as  applicable,  until  the  date  of  the  termination  of  the  procedure  shall not  exceed 
9 months. 

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. 

2. 

3. 

1. 

2. 

EN 

47 

  EN 

1. 

2. 

3. 

Article 38 

Notification of the FRAND determination request and response 

The competence centre shall notify the request to the responding party within 7 days 
and shall inform the requesting party thereof. 

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.  

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: 

(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; 

(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.  

(c)  where the requesting party fails to request, within the time limit referred to in 
the 

subparagraph  (a),  the  continuation  of 
competence centre shall terminate the FRAND determination.  

the  FRAND  determination, 

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: 

(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;  

(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.  

(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;  

(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.  

EN 

48 

  EN 

5. 

6. 

1. 

2. 

1. 

2. 

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.  

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. 

Article 39 

Selection of conciliators  

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. 

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). 

Article 40 

The selected candidate 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. 

The day following the notification of the acceptance to the parties, the conciliator is 
appointed, and the competence centre shall refer the case to him/her. 

Article 41 

Preparation of the proceedings  

If during the FRAND determination a conciliator is unable to participate, withdraws or needs 
to  be  replaced  because  he  or  she  does  not  comply  with  the  requirements  as  provided  for 
in Article 26, the procedure provided for in Article 39 shall apply. The time period referred to 
in Article  37  shall  be  extended  for  the  time  necessary  for  the  appointment  of  the  new 
conciliator for the FRAND determination. 

Article 42 

Preparation of the proceedings  

1. 

After the case is referred to the conciliator in accordance with  Article 40(2), he/she 
shall  examine  whether  the  request  contains  the  information  required  under Article 
36 in accordance with the Rules of procedure.  

EN 

49 

  EN 

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. 

Article 43 

Written procedure  

The  conciliator  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. 

1. 

2. 

3. 

1. 

2. 

3. 

4. 

5. 

Article 44 

Objection to the FRAND determination  

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

legal  grounds, 

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 conditions. 

If the conciliator decides that the objection is founded, it shall terminate the FRAND 
determination and shall draw up a report stating the reasons of the decision. 

Article 45 

Conduct of the FRAND determination 

The  conciliator  shall  assist  the  parties  in  an  independent  and  impartial  manner  in 
their endeavour to reach a determination of FRAND terms and conditions. 

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. 

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. 

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

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. 

Article 46 

Failure of a party to engage  

EN 

50 

  EN 

1. 

If a party: 

(a) 

fails  to  comply  with  any  request  of  the  conciliator,  Rules  of  procedure  or 
schedule of procedure referred to in Article 42(2), 

(b)  withdraws  its  commitment  to  comply  with  the  outcome  of  the  FRAND 

determination as set out in Art. 38, or  

(c) 

in  any  other  way  fails  to  comply  with  a  requirement  relating  to  the  FRAND 
determination,  

the conciliator shall inform both parties thereof.  

2. 

Having received the notification of the conciliator, the complying party may ask the 
conciliator to take one of the following actions: 

(a)  make  a  proposal  for  a  FRAND  determination  in  accordance  with  Article 
55 based  on  the  information  available  to  it,  attaching  such  weight  as  it 
considers fit to any evidence submitted to it, 

(b) 

terminate the procedure.  

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.  

Article 47 

Parallel proceedings in a third country 

1. 

For the purposes of this article a parallel proceeding means a proceeding that satisfies 
the following conditions: 

(a) 

(b) 

any procedure before a court, tribunal, an administrative or state authority of a 
third 
enforceable  decisions on 
country 
infringement,  abuse  of  a  dominant market 
patent assertion, 
position or a determination of FRAND terms and conditions; 

taking legally  binding 
injunction, 

and 

concerning a licensing dispute regarding the same standard and implementation 
and a patent which in substance has the same claims as the SEPs that is subject 
to the FRAND determination; 

2. 

1. 

(c) 

involving one or more of the parties to the FRAND determination as a party. 

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. 

Article 48 

Evidence 

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  conciliator  may  request  the  production  of  documents  or  other 
evidence.  

EN 

51 

  EN 

2. 

The  conciliator  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.  

Article 49 

Witnesses and experts 

The  conciliator  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. 

1. 

2. 

3. 

Article 50 

Proposal for a determination of FRAND terms and conditions  

At any time during the FRAND determination, the conciliator or a party on its own 
motion  or by invitation  of the conciliator may submit  proposals  for a determination 
of FRAND terms and conditions 

If  the  requesting  party  has  submitted  a  written  proposal  for  FRAND  terms  and 
conditions in its written submission, the responding party shall be given opportunity 
to comment on it and/or submit a written counter-proposal in its reply. 

submitting 

suggestions 

for  FRAND 

When 
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.  

terms 

and 

Article 51 

Recommendation of a determination of FRAND terms and conditions by the conciliator 

The  conciliator  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. 

Article 52 

Submission of reasoned proposals for determination of FRAND terms and conditions by 
the parties 

Following the notification of the written recommendation of FRAND terms and conditions by 
the conciliator, 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 conciliator. 

Article 53 

Oral procedure  

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52 

  EN 

If the conciliator 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. 

Article 54 

Disclosure of information  

1. 

2. 

3. 

1. 

2. 

1. 

the  conciliator  receives 

When 
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. 

information  for 

A  party  may  request the conciliator  that  specific  information  in  a  submitted 
document is kept confidential. 

When  a  party  requests  the  information  in  a  document  it  had  submitted  to  be  kept 
confidential, the conciliator shall not disclose that information to the other party. 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. 

Article 55 

Reasoned proposal for a determination of FRAND terms and conditions by the 
conciliator 

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. 

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. 

Article 56 

Termination of the FRAND determination and notice of termination 

In  addition  to  the  termination  of  the  FRAND  determination for  reasons  provided 
for Article  38(4),  Article  44(3), Article  45(5), Article  46(2),  point  (b), Article 
46(3) and Article 47(2), the FRAND determination shall be terminated in any of the 
following ways: 

(a) 

(b) 

(c) 

a settlement agreement is signed by the parties; 

a  written  declaration  is  signed  by  the  parties  accepting  the  reasoned  proposal 
for a determination of FRAND terms and conditions by the conciliator referred 
to in Article 55; 

a written declaration is made by a party not to accept the reasoned proposal of 
a determination of FRAND terms and conditions by the conciliator referred to 
in Article 55; 

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53 

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2. 

3. 

4. 

5. 

1. 

(d) 

a party has not submitted a reply to the reasoned proposal of a determination of 
FRAND terms and conditions by the conciliator referred to in Article 55. 

In  case  of  termination  of  the  FRAND  determination,  the  competence  centre shall 
adopt  a  notice of  termination  of  the  FRAND  determination  and  notify  the  parties 
within 5 days from termination. The notice of termination shall include the names of 
the  parties  and  the  conciliator,  the  subject-matter  of  the  FRAND  determination,  a 
summary of the procedure and the reasons for its termination. 

The notice of termination notified to the SEP owner shall be considered to constitute 
a  document  within  the  meaning  of  Article  6(3)  point  (c)  of  Regulation  (EU) 
No 608/2013 with regard to any request for a customs action against goods suspected 
to infringing its SEP.  

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 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. 

Article 57 

Report  

The  conciliator  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). 

2. 

The report shall include the following: 

(a) 

the names of the parties; 

(b) 

a confidential assessment of the FRAND determination; 

(c) 

(d) 

confidential summary of the main issues of disagreement;  

a  non-confidential  methodology  and  the  assessment of  the determination  of 
FRAND terms and conditions by the conciliator. 

3. 

4. 

The confidential  report shall be available only to the parties  and to  the competence 
centre.  The  competence  centre  shall  publish  the  non-confidential  report  in  the 
database. 

Either  party  to  the  FRAND  determination  may  file  the  report  in  any  proceedings 
before a competent court of a Member State against the other party to the FRAND 
determination, notwithstanding any procedural bar. 

Article 58 

Confidentiality  

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54 

  EN 

1. 

2. 

1. 

2. 

1. 

2. 

3. 

4. 

Except  the methodology  and  the  assessment of  the FRAND  determination  by  the 
conciliator  referred  to  in Article  57(2),  point  (d),  the  competence  centre  shall  keep 
confidential  the  determination  of  FRAND  terms  and  conditions,  any  proposals  for 
determination of FRAND terms  and conditions  submitted  during the procedure and 
any  documentary  or  other  evidence  disclosed  during  the  FRAND  determination 
which is not publicly available, unless otherwise provided by the parties. 

Notwithstanding  paragraph  (1),  the  competence  centre  may  include  information 
concerning  the  FRAND  determination  in  any  aggregate  statistical  data  that  it 
publishes  concerning  its  activities,  provided  that  such  information  does  not  allow 
identification the  parties  or  the  particular  circumstances  of  the  dispute  to  be 
identified.  

Title VII 
Procedural rules 

Article 59 

Communications to and notifications from the competence centre 

The  communication  to  and  notifications  from  the  competence  centre shall  be 
conducted in principle by electronic means. 

The  Executive  Director  of  the  EUIPO  shall  determine  to  what  extent  and  under 
which technical conditions communications and notifications referred to in paragraph 
(1) are to be submitted electronically. 

Article 60 

Time limits 

Time  limits  shall  be  laid  down  in  terms  of  full  years,  months,  weeks  or  days. 
Calculation  shall  start  on  the  day  following  the  day  on  which  the  relevant  event 
occurred. 

The Executive Director of the EUIPO shall determine, before the commencement of 
each  calendar  year,  the  days  on  which  the  EUIPO is  not  open  for  receipt  of 
documents  or  on  which  ordinary  post  is  not  delivered  in  the  locality  in  which  the 
EUIPO is located. 

The Executive Director of the EUIPO shall determine the duration of the period of 
interruption  in  the  case  of  a  general  interruption  in  the  delivery  of  post  in  the 
Member State where the EUIPO is located or, in the case of an actual interruption of 
the EUIPO's connection to admitted electronic means of communication. 

In cases of exceptional  occurrences making the communication between the parties 
to  the  proceedings  and  the  competence  centre very  cumbersome,  the  Executive 
Director of the EUIPO may extend all time limits that would otherwise expire on or 
after  the  date  of  commencement  of  such  an  occurrence,  as  determined  by  the 
Executive Director in relation to the following subjects: 

(a) 

(b) 

parties  to  the  proceedings  having  their  residence  or  registered  office  in  the 
region concerned; 

representatives or assistants  with  a place of business  in  the region  concerned, 
appointed by the parties.  

EN 

55 

  EN 

5. 

1. 

2. 

3. 

1. 

2. 

3. 

1. 

2. 

When determining the length of extension referred to in the second subparagraph, the 
Executive  Director  of  the  EUIPO  shall  take  into  account  the  end  date  of  the 
exceptional  occurrence.  If  the  occurrence  referred  to  in  the  second  subparagraph 
affects  the  seat  of  the  EUIPO,  the  determination  of  the  Executive  Director  of  the 
EUIPO shall specify that it applies in respect of all parties to the proceedings. 

Title VIII 
Micro, Small and Medium-size Enterprises 

Article 61 

Training, advice and support  

The  competence  centre  shall  offer training  and  support on  SEP  related  matters for 
micro, small and medium-size enterprises free of charge. 

The competence centre may commission studies, if it considers it necessary, to assist 
micro, small and medium-size enterprises on SEP related matters.  

The costs of the services referred to in paragraph (1) and paragraph (2) shall be borne 
by the EUIPO.  

Article 62 

FRAND terms for micro, small and medium-sized enterprises  

When  negotiating  a  SEP  licence  with  micro, small  and  medium-sized  enterprises, 
SEP  holders shall  consider  offering  to  them  FRAND  terms  and  conditions  that  are 
more favourable than the FRAND terms and conditions they offer to enterprises that 
are not micro, small and medium-sized for the same standard and implementations.  

If a SEP holder offers more favourable FRAND terms and conditions to micro, small 
and  medium-sized  enterprises,  or  concludes  a  SEP  licence  that  includes  more 
favourable terms and conditions, pursuant to paragraph (1), such FRAND terms and 
conditions  shall  not  be  considered  in  a  FRAND  determination, unless  the  FRAND 
determination  is  conducted  solely  with  regard  to  FRAND  terms  and  conditions  for 
another micro, small or medium-sized enterprise.  

SEP  holders shall  also  consider  discounts or  royalty-free  licensing  for  low  sales 
volumes  irrespective  of  the  size  of  the  implementer  taking  the  licence.  Such 
discounts  or  royalty-free  licensing  shall  be  fair,  reasonable  and  non-discriminatory 
and shall be available in the electronic database as set out in Article 5(2), point (b). 

Title IX 
Fees and Charges 

Article 63 

Fees and charges  

The  competence  centre  may  charge administrative  fees  for  the  services  it  renders 
under this Regulation. 

Fees may be charged at least in respect of the following matters: 

EN 

56 

  EN 

(a) 

for the conciliators facilitating agreements on aggregate royalty determinations 
in accordance with Article 17; 

(b) 

for the expert opinion on aggregate royalty in accordance with Article 18; 

(c) 

for  the  essentiality  check  carried  out  by  the  evaluator in  accordance  with 
Article 31 and by the peer evaluator in accordance with Article 32; 

(d) 

for the conciliators for the FRAND determination in accordance with Title VI. 

3. 

Where the competence centre charges fees in accordance with paragraph 2, the fees 
shall be borne as follows: 

(a) 

(b) 

(c) 

(d) 

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; 

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; 

the fees referred to in paragraph (2), point (c) by the SEP holder that requested 
an  essentiality  check  pursuant  to Article  29(5) or  peer  evaluation  pursuant  to 
Article 32(1) and the implementer that requested an essentiality check pursuant 
to Article 29(6); 

the  fees  referred  to  in paragraph  (2),  point  (d) equally  by  the  parties,  unless 
they  agree  otherwise,  or  the  conciliator  suggests  a  different  apportionment 
based on the level of participation of the parties in the FRAND determination. 

The  level  of  the  fees  shall  be  reasonable  and  shall  correspond  to the  costs  of  the 
services.  It  shall  take  into  account  the  situation  of  micro,  small  and  medium-sized 
enterprises. 

By [OJ: please insert the date = 18 months from entry into force of this Regulation], 
the Commission shall adopt an implementing act determining the amounts of the fees 
referred to in Article 63, the arrangement concerning the payment methods related to 
the rules set out in paragraph (3) and paragraph (4) of this Article. The implementing 
act shall  be  adopted  in  accordance  with  the  examination  procedure  referred  to 
in Article 68(2). 

Article 64 

Payment of fees 

Fees shall be paid to the EUIPO. All payments shall be made in euro. The Executive 
Director of the EUIPO may establish which specific payment methods may be used. 

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. 

The date on which the payment shall be considered to have been made to the EUIPO 
shall be the date on which the amount of the payment  or of the transfer  is  actually 
entered in a bank account held by EUIPO. 

4. 

5. 

1. 

2. 

3. 

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57 

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4. 

1. 

2. 

1. 

2. 

3. 

4. 

If  any  part  of  the  required  payment  remains  outstanding  after  the  deadline 
in paragraph  (2),  the  competence  centre may  suspend  access  to  the  database of  the 
defaulting party, until payment is made.  

Article 65 

Financial provisions 

The expenses incurred by the EUIPO or the evaluators or conciliators selected by the 
EUIPO  pursuant  to  Articles  26  and  27 in  carrying  out  the  tasks  conferred  to  it  in 
accordance  with  this  Regulation  shall  be  covered  by  the  administrative  fees  to  be 
paid to the EUIPO by the users of the services of the competence centre. 

Regarding  costs  incurred  by  the  EUIPO for  activities  entrusted  to  it  by  this 
Regulation which are not covered by the fees under this Regulation, the EUIPO shall 
finance those activities from its own budgetary means. 

Title X 
Final Provisions 

Article 66 

Opening registration for an existing standard 

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 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 the delegated 
act  in  accordance  with paragraph  (4).  The  procedures,  notification  and  publication 
requirements set out in this Regulation apply mutatis mutandis. 

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. 

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. 

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 

EN 

58 

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within  [OJ:  please  insert  the  date  =  18 months  from  entry  into  force  of  this 
regulation]. 

This article shall apply without prejudice to any acts concluded and rights acquired 
by [OJ: please insert the date = 28 months from entry into force of this regulation]. 

Article 67 

Exercise of delegation of power 

The power to adopt the delegated acts is conferred on the Commission subject to the 
conditions laid down in this Article. 

The power to adopt a delegated act referred to in Articles 1(4), 4(5) 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. 

The delegation of power referred to in Articles 1(4), 4(5) 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. 

Before adopting a delegated act, the Commission shall consult experts designated by 
each  Member  State 
the 
in  accordance  with 
Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 

the  principles 

laid  down 

in 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council. 

A delegated act  adopted  pursuant  to Articles  1(4),  4(5)  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. 

Article 68 

Committee procedure  

The  Commission  shall  be  assisted  by  a  committee.  That  committee  shall  be  a 
committee within the meaning of Regulation (EU) No 182/2011.  

Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 shall apply.  

5. 

1. 

2. 

3. 

4. 

5. 

6. 

1. 

2. 

Article 69 

Commission guidance 

The Commission may issue guidance under this Regulation on matters covered by its scope, 
excluding matters related to the interpretation of Article 101 and Article 102 TFEU. 

EN 

59 

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Article 70 

Evaluation 

1. 

2. 

3. 

4. 

By [OJ: please insert the date = 5 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. 

By [OJ: please insert the date = 8 years from entry into force of this regulation], and 
every five 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. 

When  preparing  the  evaluation  reports  referred  to  in  paragraphs  (1)  and  (2),  the 
Commission shall consult the EUIPO and stakeholders. 

The Commission shall submit the evaluation reports referred to in paragraphs (1) and 
(2)  together  with  its  conclusions  drawn  based  on  those reports  to  the  European 
Parliament, to the Council, to the European Economic and Social Committee and to 
the Management Board of the EUIPO. 

Article 71 

Amendments to Regulation (EU) 2017/1001 

Regulation (EU) 2017/1001 is amended as follows: 

1. 

Article 151(1) is amended as follows: 

(a) 

the following point is inserted: 

‘(ba)  administration,  promotion  and  support of  the  tasks  conferred  on  it, 
performed  by  a  competence  centre,  under  Regulation  (EU)  No  …  of  the 
European Parliament and of the Council+* ; 

* Regulation (EU) .../... of the European Parliament and of the Council of ... on 
standard essential patents (OJ ...).’; 

(b)  paragraph 3 is replaced by the following: 

‘3. The  Office  may  provide  alternative  dispute  resolution  services,  including 
mediation,  conciliation,  arbitration,  determination  of  royalties  and  FRAND 
determination.’; 

in Article 157(4), the following point is added:  

’(p) exercising the powers conferred on him or her under Regulation (EU) …++.’; 

Article 170 is amended as follows: 

(a) 

the title is replaced by the following: 

‘Alternative Dispute Resolution Centre’; 

(b)  paragraphs 1 and 2 are replaced by the following  

‘1. For the purposes of Article 151(3), the Office may establish an Alternative 
Dispute Resolution Centre (‘the Centre’). 

2.  Any  natural  or  legal  person  may  use  the  services  of  the  Centre for  settling 
disputes relating to intellectual property rights’; 

2. 

3. 

EN 

60 

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(c) 

paragraph 15 is replaced by the following: 

‘15. The Office may cooperate with other recognised national or international 
bodies providing alternative dispute resolution services.’; 

(d) 

the following paragraph is added: 

‘16. Articles 18, 19 and Articles 34 to 58 of Regulation …++ shall apply to the 
Centre in all proceedings relating to standard essential patents.’. 

[+  OJ:  Please  insert  in  the  text  the  number  of  this  Regulation  and  insert  the 
number, date and OJ reference of this Regulation in the footnote.] 

[++ OJ: Please insert in the text the number of this Regulation.] 

Article 72 

Entry into force and application 

1. 

2. 

This  Regulation  shall  enter  into  force  on  the  twentieth  day  following  that  of  its 
publication in the Official Journal of the European Union. 

It shall apply from … [OP: please insert the date = 24 months after the date of entry 
into force of this Regulation]. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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LEGISLATIVE FINANCIAL STATEMENT 

FRAMEWORK OF THE PROPOSAL/INITIATIVE 

Title of the proposal/initiative 

Policy area(s) concerned 

The proposal/initiative relates to: 

Objective(s) 

1. 

1.1. 

1.2. 

1.3. 

1.4. 

1.4.1.  General objective(s) 

1.4.2. 

Specific objective(s) 

1.4.3.  Expected result(s) and impact 

1.4.4. 

Indicators of performance 

1.5. 

Grounds for the proposal/initiative 

1.5.1.  Requirement(s) to be met in the short or long term including a detailed timeline for 

roll-out of the implementation of the initiative 

1.5.2.  Added  value  of  Union  involvement  (it  may  result  from  different  factors,  e.g. 
coordination gains, legal certainty, greater effectiveness or complementarities). For 
the purposes of this point 'added value of Union involvement' is the value resulting 
from  Union  intervention,  which  is  additional  to  the  value  that  would  have  been 
otherwise created by Member States alone. 

1.5.3.  Lessons learned from similar experiences in the past 

1.5.4.  Compatibility  with  the  Multiannual  Financial  Framework  and  possible  synergies 

with other appropriate instruments 

1.5.5.  Assessment  of  the  different  available  financing  options,  including  scope  for 

redeployment 

1.6. 

Duration and financial impact of the proposal/initiative 

1.7.  Method(s) of budget implementation planned 

2. 

MANAGEMENT MEASURES 

2.1.  Monitoring and reporting rules 

2.2.  Management and control system(s) 

2.2.1. 

2.2.2. 

Justification of the management mode(s), the funding implementation mechanism(s), 
the payment modalities and the control strategy proposed 

Information concerning the risks identified and the internal control system(s) set up 
to mitigate them 

2.2.3.  Estimation and justification of the cost-effectiveness of the controls (ratio of "control 
costs ÷ value of the related funds managed"), and assessment of the expected levels 
of risk of error (at payment & at closure) 

2.3.  Measures to prevent fraud and irregularities 

3. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE 

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3.1. 

Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget 
line(s) affected 

3.2. 

Estimated financial impact of the proposal on appropriations 

3.2.1. 

Summary of estimated impact on operational appropriations 

3.2.2.  Estimated output funded with operational appropriations 

3.2.3. 

Summary of estimated impact on administrative appropriations 

3.2.3.1.  Estimated requirements of human resources 

3.2.4.  Compatibility with the current multiannual financial framework 

3.2.5.  Third-party contributions 

3.3. 

Estimated impact on revenue 

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1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1. 

Title of the proposal/initiative 

Regulation  of  the  European  Parliament  and  of  the  Council  on  Standard  Essential 
Patents and amending Regulation (EU) 2017/1001 

1.2. 

Policy area(s) concerned  

Internal market 

1.3. 

The proposal/initiative relates to:  

 a new action  

 a new action following a pilot project/preparatory action49  

 the extension of an existing action  

 a merger or redirection of one or more actions towards another/a new action  

1.4. 

Objective(s) 

1.4.1.  General objective(s) 

This initiative aims at: (i) ensuring that end users, including small businesses and EU 
consumers  benefit  from  products  based  on  the  latest  standardised  technologies  at 
reasonable prices; (ii) making the EU an attractive place for innovation and standards 
development (including for global participants); and (iii) ensuring that both EU SEP 
holders and implementers innovate in the EU, make and sell products in the EU and 
are competitive on global markets. 

1.4.2. 

Specific objective(s) 

Specific objective No 

• Provide more clarity on who owns SEP and which SEPs are truly essential. 

• Provide clarity on FRAND royalty and other terms and conditions 

• Facilitate SEP dispute resolution. 

1.4.3.  Expected result(s) and impact 

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted. 

Increase  transparency  of  SEP  licensing,  lowering  transaction  cost  and  facilitating 
SEP dispute resolution for both SEP holders and implementers. 

1.4.4. 

Indicators of performance 

Specify the indicators for monitoring progress and achievements. 

Success  indicators  are  defined  in  the  impact  assessment  chapter  9Specify  the 
indicators  for  monitoring  progress  and  achievements.Each  indicator  should  be 
accompanied by targets and baseline. 

Table 1: Monitoring indicators 

Research question 

Indicators 

Specific Objective 1. Provide information on SEPs ownership and essentiality 

49 

As referred to in Article 58(2)(a) or (b) of the Financial Regulation. 

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Has access to 
information on 
SEPs improved? 

- Number of standards with SEPs registered in the database 
- Number of SEP holders registered 
- Number of essentiality checks conducted (overall, per SEP holder, per standard) 
- Is database up to date (when SEP is registered, is information updated) 
- Number of times database is used (access rate) and how it is used (e.g. new private  services 

built on these data) 

- Perception of quality of register and essentiality checks 
- Results of peer evaluations (number of confirmed essentiality checks) 
- Cost/quality of the central system in comparison to available private solutions 

Specific Objective 2. Provide clarity on FRAND royalty 

Has information on 
FRAND price, 
terms and 
conditions 
improved? 

- Number of studies done by Competence Centre 
- Number of SMEs receiving assistance 
- Perception of quality of studies, assistance 
- Number of standards, and their applications  
- Number of aggregate royalties announced, or expert opinions provided  
- Perception of the aggregate royalty rate  setting process/and rate itself by implementers and 

holders; use in court cases/judgements 

- Frequency of changes of the aggregate royalty  
- Cost/quality of the Competence Centre services in comparison to available private solutions 

Specific Objective 3. Facilitate dispute resolution 

How the new 
systems changed 
dispute resolution 

- Usage  of  conciliation  (number  of  cases  per  year,  duration,  quality  assessment  by  courts, 
usage in court proceedings and in judgments; usage in support of applications for customs’ 
action) 

- Change in SEP litigation cost/duration due to conciliation 
- Usefulness of guidelines (perception by stakeholders, usage in court cases,) 

Sources  of 
information:  Competence  Centre  database;  Feedback/Surveys  of  new  system  (Competence 
Centre/register/conciliation/guidelines)  users  such  as  e.g.  SEP  holders  and  implementers,  judges,  essentiality 
checkers;  Court  cases/judgements/injunctions  analysis;  dedicated  evaluation  studies;  public  consultations;  desk 
research 

General objectives 

Impact on SEP 
holders 

Impact on SEP 
implementers 

- Number of SEP holders based in the EU 
- Number of SEPs registered by SEP holders based in the EU 
- Length of licence negotiations, number of licensors 
- Contribution of EU firms in standard development activities 
- Localisation of production/R&D of such products/services (EU/third countries) 
- Cost of SEP licence for EU firms, effort of obtaining a license  
- Percentage of SEPs covered through licensing. 
- Competitiveness  of  EU  firms  making  SEP  implementing  products/services  in  the  EU  and 

third countries. 

- Localisation of production/R&D of such products/services (EU/third countries) 
- Contribution of EU firms in standard development activities 
- Time of introduction of new products/services using latest standards in the EU in comparison 

Impact on EU 
customers 
Sources  of  information:  Surveys,  official  statistics  (e.g.  Eurostat’s  “Enterprises  using  IoT”,  isoc_eb_iot),  dedicated 
evaluation studies; public consultations; desk research. 

to other countries, price of such products 

1.5. 

Grounds for the proposal/initiative  

1.5.1.  Requirement(s) to be met in the short or long term including a detailed timeline for 

roll-out of the implementation of the initiative 

Creation of the Competence Centre within the European Union Intellectual Property 
Office (EUIPO), including setting up of a SEP register, necessary IT tools as well as 
preparatory  activities for the remaining  components  of the initiative (e.g. definition 
of  all  processes,  preparation  of  all  the  procedures,  setting  up  quality  controls, 
compiling a list of SEP examiners, creating a roster of conciliators, training of SEP 
examiners and conciliators, gathering information SEP related policies and case law 
summaries, setting up SME assistance hub, preparation of training materials, etc.) is 

EN 

4 

  EN 

expected  to  take  up  to  two  years.  The  system  is  expected  to  be  fully  operational 
afterwards. 

1.5.2.  Added  value  of  Union  involvement  (it  may  result  from  different  factors,  e.g. 
coordination gains, legal certainty, greater effectiveness or complementarities). For 
the purposes of this point 'added value of Union involvement' is the value resulting 
from  Union  intervention,  which  is  additional  to  the  value  that  would  have  been 
otherwise created by Member States alone. 

Action at EU level is expected to save costs for stakeholders, both SEP holders and 
implementers, and for Member States. For instance, there would be one register, one 
essentiality  check  per  patent  family,  one  common  methodology  for  the  conduct  of 
such checks, and a streamlined and transparent conciliation (FRAND determination) 
process.  SEP  holders  and  implementers  would  not  have  to  incur  the  same  costs  in 
each EU Member State which would be the case with national solutions, especially 
in a situation where most standards are regional or global. 

1.5.3.  Lessons learned from similar experiences in the past 

EUIPO  will  build  on  its  experience  with  managing  registers  for  other  IP  titles,  as 
well  as  its  experience  with  assistance  to  SMEs  and  alternative  dispute  resolution 
services. 

1.5.4.  Compatibility  with  the  Multiannual  Financial  Framework  and  possible  synergies 

with other appropriate instruments 

N/A 

1.5.5.  Assessment  of  the  different  available  financing  options,  including  scope  for 

redeployment 

This initiative will be fully self-financed by the EUIPO (through fees). 

EN 

5 

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1.6. 

Duration and financial impact of the proposal/initiative 

 limited duration  

–    in effect from [DD/MM]YYYY to [DD/MM]YYYY  

–    Financial  impact  from  YYYY  to  YYYY  for  commitment  appropriations  and 

from YYYY to YYYY for payment appropriations.  

 unlimited duration 

–  Implementation  period  expected  to  take  up  to  two  years,  followed  by  full-scale 

operation. 

1.7.  Method(s) of budget implementation planned50  

 Direct management by the Commission 

–   by its departments, including by its staff in the Union delegations;  

–    by the executive agencies  

 Shared management with the Member States  

 Indirect management by entrusting budget implementation tasks to: 

–   third countries or the bodies they have designated; 

–   international organisations and their agencies (to be specified); 

–   the EIB and the European Investment Fund; 

–   bodies referred to in Articles 70 and 71 of the Financial Regulation; 

–   public law bodies; 

–   bodies governed by private law with a public service mission to the extent that 

they are provided with adequate financial guarantees; 

–   bodies governed by the private law of a Member State that are entrusted with 
the  implementation  of  a  public-private  partnership  and  that  are  provided  with 
adequate financial guarantees; 

–   bodies or persons entrusted with the implementation of specific actions in the 
CFSP pursuant to Title V of the TEU, and identified in the relevant basic act. 

– 

If more than one management mode is indicated, please provide details in the ‘Comments’ section. 

Comments  

No EU budget involved, fully financed by the EUIPO from fees. 

50 

Details of budget implementation methods and references to the Financial Regulation may be found on 
the BUDGpedia site: https://myintracomm.ec.europa.eu/corp/budget/financial-rules/budget-
implementation/Pages/implementation-methods.aspx 

EN 

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2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

Specify frequency and conditions. 

Rules  of  EUIPO  will  apply.  The  regulation  will  be  evaluated  every  five  years  in 
accordance with Art 71 of the draft regulation. 

2.2.  Management and control system(s)  

2.2.1. 

Justification of the management mode(s), the funding implementation mechanism(s), 
the payment modalities and the control strategy proposed 

Rules of EUIPO will apply. 

2.2.2. 

Information concerning the risks identified and the internal control system(s) set up 
to mitigate them 

Rules of EUIPO will apply. 

2.2.3.  Estimation and justification of the cost-effectiveness of the controls (ratio of "control 
costs ÷ value of the related funds managed"), and assessment of the expected levels 
of risk of error (at payment & at closure)  

Rules of EUIPO will apply. 

2.3.  Measures to prevent fraud and irregularities  

Specify existing or envisaged prevention and protection measures, e.g. from the Anti-Fraud Strategy. 

Rules of EUIPO will apply. 

EN 

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3. 

3.1. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget 
line(s) affected  

  Existing budget lines N/A 

In order of multiannual financial framework headings and budget lines. 

Budget line 

Type of  
expenditure 

Contribution  

Heading of 
multiannual 
financial 
framework 

Number  

Diff./Non-
diff.51 

from 
EFTA 
countries
52 

from 
candidate 
countries 
and 
potential 
candidates
53 

fromother 
third 
countries 

other assigned 
revenue 

N/A 

Diff./Non
-diff. 

YES/NO  YES/NO  YES/NO 

YES/NO 

  New budget lines requested N/A 

In order of multiannual financial framework headings and budget lines. 

Heading of 
multiannual 
financial 
framework 

Number  

N/A 

Budget line 

Type of 
expenditure 

Diff./Non-
diff. 

from 
EFTA 
countries 

Contribution  

from 
candidate 
countries 
and 
potential 
candidates 

from 
other 
third 
countries 

other assigned 
revenue  

YES/NO  YES/NO  YES/NO 

YES/NO 

51 
52 
53 

Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations. 
EFTA: European Free Trade Association.  
Candidate countries and, where applicable, potential candidates from the Western Balkans. 

EN 

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3.2. 

Estimated financial impact of the proposal on appropriations  

3.2.1. 

Summary of estimated impact on operational appropriations  

–    The proposal/initiative does not require the use of operational appropriations  

–    The proposal/initiative requires the use of operational appropriations, as explained below: 

EUR million (to three decimal places) 

Year 
N54 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as 
necessary to show the duration 
of the impact (see point 1.6) 

TOTAL 

Heading of multiannual financial  
framework  

Number 

DG: <…….> 

 Operational appropriations  

Budget line55 

Budget line 

Commitments 

Payments 

Commitments 

Payments 

(1a) 

(2a) 

(1b) 

(2b) 

Appropriations  of  an  administrative  nature  financed  from  the 
envelope of specific programmes56  

Budget line 

TOTAL appropriations 
for DG <…….> 

Commitments 

Payments 

(3) 

=1a+1b 
+3 

=2a+2b 

+3 

54 

55 
56 

Year N is the year in which implementation of the proposal/initiative starts. Please replace "N" by the  expected first year of implementation (for instance: 2021). The same  for the 
following years. 
According to the official budget nomenclature. 
Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research. 

EN 

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 TOTAL operational appropriations  

Commitments 

Payments 

  TOTAL  appropriations  of  an  administrative  nature 
financed from the envelope for specific programmes  

(4) 

(5) 

(6) 

TOTAL appropriations  
under HEADING <….> 
of the multiannual financial framework 

Commitments 

=4+ 6 

Payments 

=5+ 6 

If more than one operational heading is affected by the proposal / initiative, repeat the section above: 

  TOTAL  operational  appropriations  (all 
operational headings) 

Commitments 

Payments 

TOTAL  appropriations  of  an  administrative  nature  financed 
from  the  envelope  for  specific  programmes  (all  operational 
headings) 

(4) 

(5) 

(6) 

TOTAL appropriations  
under HEADINGS 1 to 6 
of the multiannual financial framework 
(Reference amount) 

Commitments 

=4+ 6 

Payments 

=5+ 6 

Heading of multiannual financial  
framework  

7 

‘Administrative expenditure’ 

This section should be filled in using the 'budget data of an administrative nature' to be firstly introduced in the Annex to the Legislative 
Financial Statement (Annex 5 to the Commission decision on the internal rules for the implementation of the Commission section of the general 
budget of the European Union), which is uploaded to DECIDE for interservice consultation purposes. 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as 
necessary to show the duration 
of the impact (see point 1.6)  

TOTAL 

EUR million (to three decimal places) 

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DG: <…….> 

 Human resources  
 Other administrative expenditure  

TOTAL DG <…….> 

Appropriations  

TOTAL appropriations 
under HEADING 7 
of the multiannual financial framework  

(Total  commitments  = 
Total payments) 

TOTAL appropriations  
under HEADINGS 1 to 7 
of the multiannual financial framework  

Commitments 

Payments 

Year 
N57 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as 
necessary to show the duration 
of the impact (see point 1.6) 

TOTAL 

EUR million (to three decimal places) 

3.2.2.  Estimated output funded with operational appropriations  

Indicate 
objectives and 
outputs  

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

OUTPUTS 

Commitment appropriations in EUR million (to three decimal places) 

Enter as many years as necessary to show the 
duration of the impact (see point 1.6) 

TOTAL 

57 

EN 

Year N is the year in which implementation of the proposal/initiative starts. Please replace "N" by the expected first year of implementation (for instance: 2021). The same  for the 
following years. 

11 

EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
o
N

Cost 

o
N

Cost 

o
N

Cost 

o
N

Cost 

o
N

Cost  N

o

Cost 

o
N

Cost 

Total 
No 

Total 
cost 

 

Type58 

Avera
ge 
cost 

SPECIFIC OBJECTIVE No 159… 

- Output 

- Output 

- Output 

Subtotal for specific objective No 1 

SPECIFIC OBJECTIVE No 2 ... 

- Output 

Subtotal for specific objective No 2 

TOTALS 

58 
59 

Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.). 
As described in point 1.4.2. ‘Specific objective(s)…’  

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3.2.3. 

Summary of estimated impact on administrative appropriations  

–    The  proposal/initiative  does  not  require  the  use  of  appropriations  of  an 

administrative nature  

–    The proposal/initiative requires the use of appropriations of an administrative 

nature, as explained below: 

EUR million (to three decimal places) 

Year 
N 60 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as necessary to show the 
duration of the impact (see point 1.6) 

TOTAL 

HEADING 7 
of the multiannual 
financial framework 

Human resources  

Other administrative 
expenditure  

Subtotal HEADING 7 
of the multiannual 
financial framework  

Outside HEADING 761 
of the multiannual 
financial framework  

Human resources  

Other expenditure  
of an administrative 
nature 

Subtotal  
outside HEADING 7 
of the multiannual 
financial framework  

TOTAL 

The  appropriations  required  for  human  resources  and  other  expenditure  of  an  administrative  nature  will  be  met  by 
appropriations from the DG that are already assigned to management of the action and/or have been redeployed within the 
DG,  together  if  necessary  with  any  additional  allocation  which  may  be  granted  to  the  managing  DG  under  the  annual 
allocation procedure and in the light of budgetary constraints. 

60 

61 

Year N is the year in which implementation of the proposal/initiative starts. Please replace "N" by the expected first 
year of implementation (for instance: 2021). The same for the following years. 
Technical  and/or  administrative  assistance  and  expenditure  in  support  of  the  implementation  of  EU programmes 
and/or actions (former ‘BA’ lines), indirect research, direct research. 

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3.2.3.1.  Estimated requirements of human resources  

–    The proposal/initiative does not require the use of human resources.  

–    The  proposal/initiative  requires  the  use  of  human  resources,  as  explained 

below: 

The table below presents an indicative number of FTEs that the EUIPO may need to use in 
order to implement the proposal. 

2024* 
(implementation 
period) 

2025 
(implementation 
period) 

2026 
(operational period) 

2027 and subsequent 
(operational period) 

EUIPO AD/AST staff 

EUIPO contractual staff 

total 

6 

6 

12 

6 

6 

12 

6 

24 

30 

6 

4 

10 

*real date will depend on the adoption of the proposal by co-legislators 

The high number of FTEs in the year three (first year of the system’s operation) is due to the 
expected  registration  of  up  to  72  000  patent  families,  while  in  the  subsequent  years  the 
number of the registrations is expected to drop to around 10% of the initial registrations. The 
actual take-up of the new system is, however, uncertain – these are our estimations based on 
the  impact  assessment.  It  should  be  noted  that  the  staff  resources  in  the  table  above  also 
include  four  FTEs  in  each  year  for  operational  activities,  such  as  the  operation  of  the 
Competence  Centre,  which  will  have  the  role  of  a  back-office  for  FRAND  determination 
processes (conciliations) and aggregate royalty processes.  

Additionally, during the operational period EUIPO will outsource services such as essentiality 
checks  and  conciliations  to  external  experts.  We  estimate  that  in  the  year  three,  around  82 
FTEs of experts in the essentiality assessment will be necessary, going down to around eight 
FTEs  of  experts  from  the  year  four  onwards.  We  also  estimate  that  service  of  around  two 
FTEs of conciliators will be required annually. 

The table below presents an indicative cost of FTEs that EUIPO may need to use in order to 
implement the proposal. 

EUR million (to three decimal places) in constant prices 

2024* 

2025 

(implementation 
period) 

(implementation 
period) 

2026 
(operational period) 

2027  and  subsequent 
(operational period) 

EUIPO AD/AST staff 

0.790 

EUIPO contractual staff 

0.810 

Total 

1.590 

0.790 

3.120 

3.900 

0.790 

0.520 

1.310 

*real date will depend on the adoption of the proposal by co-legislators 

Additionally,  one-off  IT  expenditures  are  estimated  at  EUR  0.815  million,  and  annual  IT 
maintenance expenditures at EUR 0.163 million. 

An estimate for the remuneration of the outsourced experts is presented below. 

EUR million (to three decimal places) in constant prices 

2024*-2025 
(implementation period) 

2026 
(operational period) 

2027 and subsequent 
(operational period) 

EN 

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External experts 

74.025 

9.067 

Detailed calculations and forecasts are presented in the impact assessment, annex A7.1. 

Estimate to be expressed in full time equivalent units 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as 
necessary to show the duration 
of the impact (see point 1.6) 

 Establishment plan posts (officials and temporary staff) 

20 01 02 01 (Headquarters and Commission’s Representation 
Offices) 

20 01 02 03 (Delegations) 

01 01 01 01 (Indirect research) 

01 01 01 11 (Direct research) 

Other budget lines (specify) 

 External staff (in Full Time Equivalent unit: FTE)62 

20 02 01 (AC, END, INT from the ‘global envelope’) 

20 02 03 (AC, AL, END, INT and JPD in the delegations) 

XX 01 xx yy zz 63 

- at Headquarters 

- in Delegations  

01 01 01 02 (AC, END, INT - Indirect research) 

01 01 01 12 (AC, END, INT - Direct research) 

Other budget lines (specify) 

TOTAL 

XX is the policy area or budget title concerned. 

The human resources required will be met by staff from the DG who are already assigned to management of the 
action  and/or  have  been  redeployed  within  the  DG,  together  if  necessary  with  any  additional  allocation  which 
may  be  granted  to  the  managing  DG  under  the  annual  allocation  procedure  and  in  the  light  of  budgetary 
constraints. 

Description of tasks to be carried out: 

Officials and temporary staff 

External staff 

62 

63 

AC=  Contract  Staff;  AL  =  Local  Staff;  END=  Seconded  National  Expert;  INT  =  agency  staff; 
JPD= Junior Professionals in Delegations.  
Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines). 

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3.2.4.  Compatibility with the current multiannual financial framework  

N/A, the proposal is managed by EUIPO and finance by fees 

The proposal/initiative: 

–    can be fully financed through redeployment within the relevant heading of the 

Multiannual Financial Framework (MFF). 

Explain what reprogramming is required, specifying the budget lines concerned and the corresponding 
amounts. Please provide an excel table in the case of major reprogramming. 

–    requires use of the unallocated margin under the relevant heading of the MFF 

and/or use of the special instruments as defined in the MFF Regulation. 

Explain  what  is  required,  specifying  the  headings  and  budget  lines  concerned,  the  corresponding 
amounts, and the instruments proposed to be used. 

–    requires a revision of the MFF. 

Explain what is required, specifying the  headings and budget lines concerned and the corresponding 
amounts. 

3.2.5.  Third-party contributions  

The proposal/initiative: 

–    does not provide for co-financing by third parties 

–    provides for the co-financing by third parties estimated below: 

EUIPO  will  collect  fees  in  order  to  cover  all  its  costs  as  well  as  the  remuneration  of  the 
external  experts.  The  table  below  presents  the  estimated  value  of  fees  collected  by  the 
EUIPO.64 
EUR million (to three decimal places) in constant prices 

2024*-2025 

(implementation period) 

2026 
(operation period) 

2027 
(operation period) 

and 

subsequent 

78.329 

10.782 

3.3. 

Estimated impact on revenue  

–    The proposal/initiative has no financial impact on revenue. 

–    The proposal/initiative has the following financial impact: 

– 

– 

– 

 

 

on own resources  

on other revenue 

please indicate, if the revenue is assigned to expenditure lines  

64 

Fees also cover the IT maintenance cost and a share of one-off costs (expected to be recovered during 
ten years). 

EN 

16 

  EN