Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2023/0133(COD)**

**INFORMATION NOTE**

**Brussels, 3 July 2024**
**(OR. en)**

**10566/24**

**CODEC 1397**
**PI 82**
**RC 22**
**COMPET 754**
**MI 667**
**IND 349**
**PE 146**

From: General Secretariat of the Council

To: Permanent Representatives Committee/Council

Subject: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL on standard essential patents and amending
Regulation (EU) 2017/1001

          - Outcome of the European Parliament's first reading
(Strasbourg, 26 to 29 February 2024)

**I.** **INTRODUCTION**

The rapporteur, Marion WALSMANN (EPP, DE), presented a report on the above proposal for a

Regulation on behalf of the Committee on Legal Affairs (JURI) which contained 268 amendments

(amendments 1 to 268) to the proposal.

In addition, the ID group tabled 10 amendments (amendments 269 to 278) and a number of MEPs

from different political groups tabled 48 amendments (amendments 279 to 327).

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**II.** **VOTE**

When it voted on 28 February 2024, the plenary of the European Parliament adopted amendments 1

to 268 to the proposal for a Regulation. No other amendments were adopted.

The Commission's proposal as thus amended constitutes the Parliament's first-reading position

which is contained in its legislative resolution as set out in the Annex hereto.

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**ANNEX**

**(28.2.2024)**

## **P9_TA(2024)0100** **Standard essential patents**

**European Parliament legislative resolution of 28 February 2024 on the proposal for a**
**regulation of the European Parliament and of the Council on standard essential patents and**
**amending Regulation (EU) 2017/1001 (COM(2023)0232 – C9-0147/2023 – 2023/0133(COD))**

**(Ordinary legislative procedure: first reading)**

_The European Parliament_,

–
having regard to the Commission proposal to Parliament and the Council (COM(2023)0232),

–
having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the
European Union, pursuant to which the Commission submitted the proposal to Parliament
(C9-0147/2023),

–
having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–
having regard to the opinion of the European Economic and Social Committee of 20
September 2023 **[1]**,

–
having regard to Rule 59 of its Rules of Procedure,

–
having regard to the opinions of the Committee on International Trade and the Committee on
the Internal Market and Consumer Protection,

–
having regard to the report of the Committee on Legal Affairs (A9-0016/2024),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially
amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national
parliaments.

**1** OJ C, C/2023/865, 08.12.2023, ELI: http://data.europa.eu/eli/C/2023/865/oj.

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**Amendment 1**

**Proposal for a regulation**
**Recital 1**

_Text proposed by the Commission_ _Amendment_

(1) On 25 November 2020, the
Commission published its intellectual
property action plan [31], 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 2021 [33] and by the
European Parliament in its Resolution [34]

(1) On 25 November 2020, the
Commission published its intellectual
property action plan [31], 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 _**micro,**_ small
and medium-sized enterprises (SMEs) [32] .
The action plan was supported by Council
Conclusions of 18 June 2021 [33] and by the
European Parliament in its Resolution of
11 November 2021 [34] .

__________________ __________________

31 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.

31 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.

32 OJ L 124 of 20.05.2003, p. 36. 32 OJ L 124 of 20.05.2003, p. 36.

33 Council conclusions on intellectual
property policy, as approved by the
Council (Economic and Financial Affairs)
at its meeting on 18 June 2021.

34 European Parliament resolution of 11
November 2021 on an intellectual property
action plan to support the EU’s recovery
and resilience (2021/2007(INI)).

33 Council conclusions on intellectual
property policy, as approved by the
Council (Economic and Financial Affairs)
at its meeting on 18 June 2021.

34 European Parliament resolution of 11
November 2021 on an intellectual property
action plan to support the EU’s recovery
and resilience (2021/2007(INI)).

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**Amendments2 and 280**

**Proposal for a regulation**
**Recital 2**

_Text proposed by the Commission_ _Amendment_

(2) This Regulation aims at improving
the licensing of SEPs, by addressing the
causes of inefficient licensing such as
insufficient transparency with regard to
SEPs, fair, reasonable and nondiscriminatory (FRAND) terms and
conditions and licensing in the value chain,
and limited use of dispute resolution
procedures for resolving FRAND disputes.
All these together reduce the overall
fairness and efficiency of the system and
result in excess administrative and
transactional costs. By improving the
licensing of SEPs, the Regulation aims to
incentivise participation by European firms
in the standard development process and
the broad implementation of such
standardised technologies, particularly in
Internet of Things (IoT) industries.
Therefore, this Regulation pursues
objectives that are complementary to, but
different from that of protecting
undistorted competition, guaranteed by
Articles 101 and 102 TFEU. This
Regulation should also be without
prejudice to national competition rules.

(2) This Regulation aims at improving
the licensing of SEPs, by addressing the
causes of inefficient licensing such as
insufficient transparency with regard to
SEPs, fair, reasonable and nondiscriminatory (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 _**, which reduces the**_
_**resources available for investment in**_
_**innovation**_ . By improving the licensing of
SEPs, the Regulation aims to incentivise
participation by European firms in the
standard development process and the
broad implementation of such standardised
technologies, particularly in Internet of
Things (IoT) industries. Therefore, this
Regulation pursues objectives that are
complementary to, but different from that
of protecting undistorted competition,
guaranteed by Articles 101 and 102 TFEU.
This Regulation should also be without
prejudice to national competition rules.

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**Amendment 3**

**Proposal for a regulation**
**Recital 2 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(2a) Good faith SEP licensing**_
_**negotiations between parties occur in**_
_**many cases, yet in some, SEPs become the**_
_**subject of legal proceedings. This**_
_**Regulation aims to provide advantages to**_
_**both Union SEP holders and SEP**_

_**implementers by introducing mechanisms**_
_**designed to address two key issues. First,**_
_**situations where SEP implementers**_
_**unreasonably delay or decline FRAND**_
_**licenses. Second, scenarios where SEP**_
_**holders impose non-FRAND royalties due**_
_**to the risk of injunction and a lack of**_
_**transparency. It is essential to ensure that**_
_**SEP holders and implementers act in**_
_**good faith before, during and after**_
_**licensing negotiations. SEP implementers**_
_**using standardised technology should**_
_**proactively seek to take a license from the**_
_**SEP holder who owns the technology they**_
_**use and SEP holders should grant a**_
_**license under FRAND terms and**_

_**conditions to any party seeking one,**_
_**irrespective of the position of the potential**_
_**licensee in the respective value chain.**_

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**Amendment 4**

**Proposal for a regulation**
**Recital 2 b (new)**

_Text proposed by the Commission_ _Amendment_

_**(2b) The measures introduced by this**_
_**Regulation are consistent with the**_
_**objectives of the WTO Agreement on**_
_**Trade-Related Aspects of Intellectual**_
_**Property Rights (the ‘TRIPs Agreement’)**_
_**to promote technological innovation and**_
_**the dissemination of technology to the**_
_**mutual advantage of the SEP holder and**_
_**the user, as well as with the principles of**_
_**preventing the abuse of intellectual**_
_**property rights and adopting measures for**_
_**public interest reasons. In particular,**_
_**according to the TRIPs Agreement, an**_
_**exception to the exclusive rights conferred**_
_**by a patent is justified if it does not**_
_**unreasonably conflict with a normal**_
_**exploitation of the patent and it does not**_
_**unreasonably prejudice the legitimate**_
_**interests of the patent owner, taking**_
_**account of the legitimate interests of third**_
_**parties.**_

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**Amendment 5**

**Proposal for a regulation**
**Recital 3**

_Text proposed by the Commission_ _Amendment_

(3) SEPs are patents that protect
technology that is incorporated in a
standard. SEPs are ‘essential’ in the sense
that implementation of the standard
requires use of the inventions covered by
SEPs. The success of a standard depends
on its wide implementation and as such
every stakeholder should be allowed to use
a standard. To ensure wide implementation
and accessibility of standards, standard
development organisations demand the
SEP holders that participate in standard
development to commit to license those
patents on FRAND terms and conditions to
implementers that chose to use the
standard. The FRAND commitment is a
voluntary contractual commitment given
by the SEP holder for the benefit of third
parties, and it should be respected as such
also by subsequent SEP holders. This
Regulation should apply to patents _**that 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.

(3) SEPs are patents that protect
technology that is incorporated in a
standard. SEPs are ‘essential’ in the sense
that implementation of the standard
requires use of the inventions covered by
SEPs. The success of a standard depends
on its wide implementation and as such
every stakeholder should be allowed to use
a standard. To ensure wide implementation
and accessibility of standards, standard
development organisations demand the
SEP holders that participate in standard
development to commit to license those
patents on FRAND terms and conditions to
implementers that chose to use the
standard. The FRAND commitment is a
voluntary contractual commitment given
by the SEP holder for the benefit of third
parties, and it should be respected as such
also by subsequent SEP holders. This
Regulation should apply to patents _**in force**_
_**in one or more Member States that a SEP**_

_**holder claims to be**_ essential to a standard
that has been published by a standard
development organisation, to which the
SEP holder _**or a previous holder of the**_
_**SEPs in question has or has not**_ 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.

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**Amendment 6**

**Proposal for a regulation**
**Recital 4**

_Text proposed by the Commission_ _Amendment_

(4) There are well established
commercial relationships and licensing
practices for certain _**use cases**_ of standards _**,**_
_**such as the standards for wireless**_
_**communications**_, with iterations over
multiple generations leading to
considerable mutual dependency and
significant value visibly accruing to both
SEP holders and implementers. There are
other, typically more novel _**use cases**_ –
sometimes of the same standards or subsets

thereof - with less mature markets, more
diffuse and less consolidated implementer
communities, for which unpredictability of
royalty and other licensing conditions and
the prospect of complex patent assessments
and valuations and related litigation weigh
more heavily on the incentives to deploy
standardised technologies in innovative
products. Therefore, in order to ensure a
proportionate and well targeted response,
certain procedures under this Regulation,
namely the aggregate royalty determination
and the compulsory FRAND determination
prior to litigation, should not be applied to
identified _**use cases of certain standards**_
_**or parts thereof for**_ which there is
sufficient evidence that SEP licensing
negotiations on FRAND terms do not give
rise to significant difficulties or
inefficiencies.

(4) There are well established
commercial relationships and licensing
practices for certain _**implementations**_ of
standards, 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 _**implementations**_ – 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 _**implementations in**_ which there
is sufficient evidence that SEP licensing
negotiations on FRAND terms _**and**_
_**conditions**_ do not give rise to significant
difficulties or inefficiencies.

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**Amendment** **7**

**Proposal for a regulation**
**Recital 4 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(4a) Significant difficulties or**_
_**inefficiencies in the licensing of SEPs**_
_**that affect the functioning of the internal**_
_**market might result from, among other**_
_**things, material impediments to the timely**_
_**and effective deployment, development,**_
_**distribution or commercialisation of a**_
_**product, service, or technology, but also**_
_**unreasonable delays, involving an undue**_
_**postponement of the conclusion of a**_
_**licence agreement. They may also result**_
_**from excessive costs, multiple legal**_
_**disputes, challenges or litigations**_
_**involving more than one SEP holder or**_
_**SEP implementer, as well as from barriers**_
_**to innovation where the implementation**_
_**of a standard, including any lack thereof,**_
_**hinders, limits or curtails technological**_
_**innovation or advancement, as compared**_
_**to industry norms.**_

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**Amendment** **8**

**Proposal for a regulation**
**Recital 5**

_Text proposed by the Commission_ _Amendment_

(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.

(5) Whereas transparency in SEP
licensing should stimulate a balanced
investment environment, along entire
Single Market value chains, in particular
for emerging technology _**implementations**_
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 or the development of
_**innovative**_ technologies and emerging
_**implementations**_ . 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
_**implementations**_, for which SEPs can be
registered.

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**Amendment 9**

**Proposal for a regulation**
**Recital 6**

_Text proposed by the Commission_ _Amendment_

(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 broader than in
Regulation (EU) No 1025/2012 of the
European Parliament and of the Council [35] .

(6) Because a FRAND commitment
should be made for any SEP _**claimed to be**_
_**essential**_ to any standard intended for
repeated and continuous application, the
meaning of standards should be broader
than in Regulation (EU) No 1025/2012 of
the European Parliament and of the
Council [35] .

__________________ __________________

35 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.)

**Amendment 10**

**Proposal for a regulation**
**Recital 7**

35 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.)

_Text proposed by the Commission_ _Amendment_

(7) Licensing on FRAND terms and
conditions includes licensing royalty-free.
Given that most issues arise with royaltybearing licensing policies, this Regulation
does not apply to royalty-free licensing.

(7) Licensing on FRAND terms and
conditions _**, which are key in the**_
_**development of the digital society,**_
includes licensing royalty-free. Given that
most issues arise with royalty-bearing
licensing policies, this Regulation does not
apply to royalty-free licensing _**of SEPs,**_
_**except where such SEPs are part of a**_
_**portfolio of patents licenses for royalties**_ .

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**Amendment 11**

**Proposal for a regulation**
**Recital 7 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(7a) Open standards are key in the**_
_**development of our digital society,**_
_**including the development of open source**_
_**software. Open standards remove barriers**_
_**to interoperability, promote choice**_
_**between vendors and technology solutions**_
_**and ensure market competition and**_
_**innovation. This Regulation applies to**_
_**open standards, whilst not discouraging**_
_**SEP holders to innovate and participate**_
_**in the open collaborative standards**_
_**development.**_

**Amendment 12**

**Proposal for a regulation**
**Recital 10 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(10a) Patent pools, as industry-led joint**_
_**patent licensing solutions, are beneficial**_
_**to the market and companies involved**_
_**with SEP licensing, including both SEP**_
_**holders and SEP implementers. They are**_
_**a predictable and fair option for licensing**_
_**patented technologies essential for a**_
_**standard, since they allow an agreement**_
_**to be reached on a widely acceptable set of**_
_**licensing terms and conditions between**_
_**companies from across the world. Since**_
_**patent pools deal with SEPs, they should**_
_**also commit to FRAND terms and**_

_**conditions and they should provide full**_
_**transparency with regard to the patents**_
_**that are covered by their portfolio, ideally**_
_**licence them to all interested licensees**_

_**regardless of their position in the value**_
_**chain and preferably include all the SEPs**_
_**relevant to the standard.**_

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**Amendment 13**

**Proposal for a regulation**
**Recital 10 b (new)**

_Text proposed by the Commission_ _Amendment_

_**(10b) While competition scrutiny of patent**_
_**pools has already taken place, the**_
_**uncertainty over the compatibility of**_
_**licensee negotiation groups (LNGs)**_
_**formed by SEP implementers still**_
_**remains. LNGs can streamline the**_

_**negotiation process, thereby reducing the**_
_**administrative burden and ensuring that**_
_**the licensing terms and conditions are**_
_**more uniform and equitable for all**_
_**participating SEP implementers. LNGs**_
_**benefit SMEs in particular. The**_
_**Commission should therefore examine the**_
_**competitive impact of LNGs and analyse**_
_**which conditions they should fulfil in**_
_**order to comply with competition law**_

_**-**_
_**while avoiding the risk of offering ‘hold**_
_**out’ options to participating SEP**_
_**implementers.**_

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**Amendment 14**

**Proposal for a regulation**
**Recital 12**

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 15**

**Proposal for a regulation**
**Recital 12 a (new)**

(12) _**As the agency of the European**_
_**Union in charge of intellectual property**_
_**rights and in order**_ 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 _**crucial to ensure that**_ the
competence centre _**has the**_ necessary
_**means, including**_ human and financial
resources to _**effectively perform**_ its tasks.

_Text proposed by the Commission_ _Amendment_

_**(12a) SEP licensing may cause friction in**_
_**the value chains that have so far not been**_
_**exposed to SEPs. Therefore, it is**_
_**important that the competence centre**_
_**raises awareness concerning SEP**_
_**licensing in the value chain through any**_
_**of the tools at its disposal, including**_
_**through a meaningful engagement of**_
_**stakeholders. Other factors would include**_
_**the ability of upstream manufacturers to**_
_**pass the cost of a SEP licence and any**_
_**potential impact of existing**_
_**indemnification clauses downstream**_
_**within a value chain. The framework**_
_**provided for in this Regulation should**_
_**promote the EU´s technological**_
_**leadership in innovation.**_

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**Amendment 16**

**Proposal for a regulation**
**Recital 13**

_Text proposed by the Commission_ _Amendment_

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

(13) The competence centre should _**on the**_
_**one hand**_ set up and administer an
electronic register containing detailed
information on SEPs in force in one or

more Member States _**. The electronic**_

_**register should serve as a foundational**_
_**repository designed to be the primary**_
_**reference point for users, providing basic**_
_**information about SEPs free of charge.**_
_**On the other hand**_, the competence centre
should _**also set**_ up and _**administer an**_
_**electronic database providing easily**_
_**accessible information in a more**_
_**extensive and comprehensive dataset to**_
_**which access could be subject to the**_
_**payment of a reasonable and**_
_**proportionate fee. Public authorities**_,
including _**courts**_, should _**have access to the**_
_**information in the database free of**_
_**charge. Academic institutions should also**_
_**be able to request access to the**_
_**information free of charge under certain**_
_**conditions. The electronic register and the**_
_**electronic database**_ should _**offer a high**_
_**level of legal certainty**_ .

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**Amendment 17**

**Proposal for a regulation**
**Recital 13 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(13a) In order to raise awareness and**_
_**facilitate SEP licensing for SMEs, the**_
_**competence centre should offer assistance**_
_**to SMEs and start-ups. The setting up and**_
_**administering of 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.**_

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**Amendment 18**

**Proposal for a regulation**
**Recital 14**

_Text proposed by the Commission_ _Amendment_

(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.**_

(14) The competence centre should be the
subject _**to**_ 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
_**should**_ be made between the free public
access to basic information and the need to
finance the functioning of the competence

centre.

10566/24 LL/ec 18

# ANNEX GIP.INST EN

**Amendment 19**

**Proposal for a regulation**
**Recital 15**

_Text proposed by the Commission_ _Amendment_

(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.

(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 _**holders**_
to plan expected return on investment _**and**_
_**SEP implementers to estimate the cost of**_
_**standard integration in their products**_ .
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, _**SEP**_
_**implementers and SEP holders would**_
_**benefit from making**_ public the
information on total royalty rates
(aggregate royalty) and the standard
FRAND terms and conditions of licensing.

10566/24 LL/ec 19

# ANNEX GIP.INST EN

**Amendment 20**

**Proposal for a regulation**
**Recital 16**

_Text proposed by the Commission_ _Amendment_
(16) SEP holders should have the (16) SEP holders should have the
opportunity to first inform the competence opportunity to first inform the competence
centre of the publication of the standard or centre of the publication of the standard _**in**_
the aggregate royalty which they have _**respect of which they claim essentiality**_ or
agreed upon among themselves. Except for the aggregate royalty which they have
those _**use cases**_ of standards for which the agreed upon among themselves. Except for
Commission establishes that there are well those _**implementations**_ of standards for
established and broadly well-functioning which the Commission establishes that
licensing practices of SEPs, the there are well established and broadly wellcompetence centre may assist the parties in functioning licensing practices of SEPs, the
the relevant aggregate royalty competence centre may assist the parties in
determination. In this context, if there is no the relevant aggregate royalty
agreement on an aggregate royalty among determination. In this context, if there is no
SEP holders, certain SEP holders may agreement on an aggregate royalty among
request the competence centre to appoint a SEP holders, certain SEP holders may
conciliator to assist the SEP holders willing request the competence centre to appoint a
to participate in the process in determining conciliator to assist the SEP holders willing
an aggregate royalty for the SEPs covering to participate in the process in determining
the relevant standard. In this case, the role an aggregate royalty for the SEPs covering
of the conciliator would be to facilitate the the relevant standard. In this case, the role
decision-making by the participating SEP of the conciliator would be to facilitate the
holders without making any decision-making by the participating SEP
recommendation for an aggregate royalty. holders without making any
_**Finally, it is important to ensure that**_ recommendation for an aggregate royalty.
_**there is a third independent party, an**_
_**expert, that could recommend an**_
_**aggregate royalty. Therefore, SEP holders**_
_**and/or implementers should be able to**_
_**request the competence centre for an**_
_**expert opinion on an aggregate royalty.**_
_**When such a request is made, the**_
_**competence centre should appoint a panel**_
_**of conciliators and administer a process**_
_**in which all interested stakeholders are**_
_**invited to participate. After receiving**_
_**information from all of the participants,**_
_**the panel should provide a non-binding**_
_**expert opinion for an aggregate royalty.**_
_**The expert opinion on the aggregate**_
_**royalty should contain a non-confidential**_
_**analysis of the expected impact of the**_
_**aggregate royalty on the SEP holders and**_
_**the stakeholders in the value chain.**_
_**Important in this respect would be to**_
_**consider factors such as, efficiency of**_
_**SEP licensing, including insights from**_
_**any customary rules or practices for**_
_**licensing of intellectual property in the**_
_**value chain and cross-licensing, and**_
_**impact on incentives to innovate of SEP**_
_**holders and different stakeholders in the**_
_**value chain.**_

10566/24 LL/ec 20

# ANNEX GIP.INST EN

**Amendment 21**

**Proposal for a regulation**
**Recital 16 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(16a) SEP holders and SEP implementers**_
_**should be able to request that the**_
_**competence centre provides a non-binding**_
_**expert opinion by an independent third**_
_**party 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 an expert opinion on the**_
_**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. In this respect, it would be**_
_**important to consider factors such as**_
_**efficiency of SEP licensing, including**_
_**insights from any customary rules or**_
_**practices for licensing of intellectual**_
_**property in the value chain and cross-**_
_**licensing, and impact on incentives to**_
_**innovate of SEP holders and different**_
_**stakeholders in the value chain.**_

10566/24 LL/ec 21

# ANNEX GIP.INST EN

**Amendment 22**

**Proposal for a regulation**
**Recital 17**

_Text proposed by the Commission_ _Amendment_

(17) 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 information on
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.

(17) In line with the general principles
and objectives of transparency,
participation and access to European
standardisation, the _**electronic**_ 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 information on
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.

10566/24 LL/ec 22

# ANNEX GIP.INST EN

**Amendment 23**

**Proposal for a regulation**
**Recital 19**

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 24**

**Proposal for a regulation**
**Recital 20**

(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. _**SEP**_
holders _**may**_ collect royalties _**even if their**_
_**SEP is not registered, but they should**_
_**only be able to**_ claim damages for uses and
infringements that happened before the
registration _**in case of timely registration,**_
_**provided that the amount thereof has been**_
_**established in accordance with the**_

_**FRAND determination rules set out in**_
_**this Regulation**_ .

_Text proposed by the Commission_ _Amendment_

(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**_ .

(20) _**In case of failure by**_ SEP holders _**to**_
register _**within**_ the indicated time limit _**, the**_
_**competence centre should notify the SEP**_
_**holder that, in case of further delays in**_
_**registering its patents, following a grace**_
_**period of 1 month, the SEP holder**_ should
not be able to _**bring a**_ claim _**in relation to**_
_**its patent until the registration is**_
_**completed**_ .

10566/24 LL/ec 23

# ANNEX GIP.INST EN

**Amendment 25**

**Proposal for a regulation**
**Recital 22**

_Text proposed by the Commission_ _Amendment_

(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 findings or other
applicable changes resulting 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**_ .

**Amendment 26**

**Proposal for a regulation**
**Recital 23**

(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 findings or other
applicable changes resulting from
contractual commitments or public
authorities’ decisions. _**In case of**_ failure to
update the registration _**, the competence**_
_**centre should notify the SEP holder that**_
_**in case of further delays in updating its**_
registration _**, following a grace period of 1**_
_**month, its SEP may be suspended**_ .

_Text proposed by the Commission_ _Amendment_

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

(23) A SEP holder may also request the
modification of a SEP registration. An
interested stakeholder may also request the
modification of a SEP registration, if it can
demonstrate that the registration is
inaccurate based on a definitive decision
by a public authority. A SEP can only be
removed from the register at the request of
the SEP holder, if the patent is expired,
was invalidated or found non-essential by a
final decision or ruling of a competent
court of a Member State or found nonessential under this Regulation. _**To ensure**_
_**transparency, a record of any**_
_**modifications to the SEP registration**_
_**should be made publicly available.**_

10566/24 LL/ec 24

# ANNEX GIP.INST EN

**Amendment 27**

**Proposal for a regulation**
**Recital 23 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(23a) It is necessary to ensure that the**_
_**registration and the 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.**_

**Amendment 28**

**Proposal for a regulation**
**Recital 24**

_Text proposed by the Commission_ _Amendment_

(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.

(24) To further ensure the quality of the
register and avoid over-registration,
essentiality checks should also be
conducted randomly by independent _**and**_
_**impartial**_ 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.

10566/24 LL/ec 25

# ANNEX GIP.INST EN

**Amendment** **29**

**Proposal for a regulation**
**Recital 26**

_Text proposed by the Commission_ _Amendment_

(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.

(26) _**SEP holders may voluntarily submit**_
_**their SEPs for essentiality checks to the**_
_**competence centre prior to registering**_
_**their patents. After the registration,**_ SEP
holders or implementers may also
designate annually up to 100 registered
SEPs for essentiality checks. If the preselected 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.

10566/24 LL/ec 26

# ANNEX GIP.INST EN

**Amendment 30**

**Proposal for a regulation**
**Recital 27**

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 31**

**Proposal for a regulation**
**Recital 29**

(27) _**Assessments**_ 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 rechecked for essentiality after the relevant
evidence supporting the information in the
register is provided to the competence
centre _**unless the evaluator has objective**_
_**reasons to believe, based on sufficient**_
_**evidence, that the prior essentiality check**_
_**was inaccurate**_ . _**SEP holders or patent**_
_**pools should also be able to conduct the**_
_**assessment of essentiality of SEPs after**_
_**the entry into force of this Regulation.**_

_Text proposed by the Commission_ _Amendment_

(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.

(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, _**it should be possible to**_
_**address**_ any subsequent disputes with
regard to essentiality _**to the competent**_
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 _**or other relevant**_
_**criteria**_ in negotiations, in patent pools and
in court.

10566/24 LL/ec 27

# ANNEX GIP.INST EN

**Amendments32 and 289**

**Proposal for a regulation**
**Recital 30**

_Text proposed by the Commission_ _Amendment_

_**(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.**_

_**deleted**_

10566/24 LL/ec 28

# ANNEX GIP.INST EN

**Amendment 33**

**Proposal for a regulation**
**Recital 31**

_Text proposed by the Commission_ _Amendment_

(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 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.

(31) The purpose of the FRAND
commitment is to facilitate adoption and
use of the standard by making SEPs
available to implementers on fair _**,**_
reasonable _**and non-discriminatory**_ terms
and 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.

10566/24 LL/ec 29

# ANNEX GIP.INST EN

**Amendment 34**

**Proposal for a regulation**
**Recital 32**

_Text proposed by the Commission_ _Amendment_

(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 nonconfidential 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.

(32) The FRAND determination should
simplify and speed up negotiations
concerning FRAND terms and _**conditions**_
_**and**_ reduce _**transaction**_ costs _**for all**_
_**stakeholders**_ . 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 _**and impartial**_ persons with
extensive experience in dispute resolution
and substantial understanding of the
economics of licensing on FRAND terms
and conditions. _**There should be rules and**_

_**procedures defining conflicts of interests**_
_**and mechanisms for addressing any such**_
_**conflicts that might arise.**_

10566/24 LL/ec 30

# ANNEX GIP.INST EN

**Amendment 35**

**Proposal for a regulation**
**Recital 33**

_Text proposed by the Commission_ _Amendment_

(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.

(33) _**In case one or more parties initiate**_
_**a**_ FRAND determination _**, it should**_ 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 _**implementations**_
of standards for which the Commission
establishes that there are no significant
difficulties or inefficiencies in licensing on
FRAND terms.

10566/24 LL/ec 31

# ANNEX GIP.INST EN

**Amendment 36**

**Proposal for a regulation**
**Recital 34**

_Text proposed by the Commission_ _Amendment_

(34) _**Each party may choose whether it**_
_**wishes to engage in the procedure and**_
_**commit to comply with its outcome.**_ Where
a party does not reply to the FRAND
determination request _**or does not commit**_
_**to comply with the outcome of the**_
_**FRAND determination**_, the other party
should be able to request either the
termination or the unilateral continuation
of the FRAND determination. Such a party
should not be exposed to litigation during
the time of the FRAND determination. At

the same time, the FRAND determination
should be an effective procedure for the
parties to reach agreement before litigation
or to obtain a determination to be used in
further proceedings. Therefore, the party or
parties that _**commit to complying with the**_
_**outcome of the FRAND determination**_
_**and**_ duly engage in the procedure should
be able to benefit from its completion.

(34) Where a party does not reply to the
FRAND determination request, the other
party should be able to request either the
termination or the unilateral continuation
of the FRAND determination. Such a party
should not be exposed to litigation during
the time of the FRAND determination. At

the same time, the FRAND determination
should be an effective procedure for the
parties to _**meet on neutral ground, such as**_
_**before a panel of conciliators and**_ reach
agreement before litigation or to obtain a
determination to be used in further
proceedings. Therefore, the party or parties
that duly engage in the procedure should be
able to benefit from its completion.

10566/24 LL/ec 32

# ANNEX GIP.INST EN

**Amendment 37**

**Proposal for a regulation**
**Recital 35**

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

10566/24 LL/ec 33

# ANNEX GIP.INST EN

**Amendment 38**

**Proposal for a regulation**
**Recital 36**

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 39**

**Proposal for a regulation**
**Recital 37**

(36) When the parties enter into the
FRAND determination, they should select
a _**panel of conciliators**_ for the FRAND
determination from the roster. In case of
disagreement, the competence centre
would select the _**members of the panel of**_
_**conciliators.**_ The FRAND determination

should be concluded within 9 months. This
time would be necessary for a procedure
that ensures that the rights of the parties are
respected and at the same time is
sufficiently swift to avoid delays in
concluding licences. Parties may settle at
any time during the process, which results
in the termination of the FRAND

determination.

_Text proposed by the Commission_ _Amendment_

(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.

(37) Upon appointment, the conciliation
centre should refer the FRAND
determination to the _**panel of conciliators**_,
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.

10566/24 LL/ec 34

# ANNEX GIP.INST EN

**Amendment 40**

**Proposal for a regulation**
**Recital 38**

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 41**

**Proposal for a regulation**
**Recital 39**

(38) The _**panel of conciliators**_ should
examine the parties’ submissions and
suggestions for the determination of
FRAND terms and conditions, and
consider the relevant negotiation steps,
among other relevant circumstances. The
_**panel of conciliators**_, upon its own
initiative or the request of a party, should
be able to require the parties to submit
evidence it deems necessary for the
fulfilment of its task. It should also be able
to examine publicly available information
and the competence centre’s register and
reports of other FRAND determinations, as
well as non-confidential documents and
information produced by or submitted to
the competence centre.

_Text proposed by the Commission_ _Amendment_

(39) If a party fails to engage in the
FRAND determination after the _**conciliator**_
has been appointed, the other party may
request the termination or may request that
the conciliator issues a recommendation for

a FRAND determination on the basis of the

information it was able to assess.

(39) If a party fails to engage in the
FRAND determination after the _**panel of**_
_**conciliators**_ 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.

10566/24 LL/ec 35

# ANNEX GIP.INST EN

**Amendment 42**

**Proposal for a regulation**
**Recital 40**

_Text proposed by the Commission_ _Amendment_

(40) If a party initiates a procedure in a
jurisdiction outside the Union resulting in
legally binding and enforceable decisions
regarding the same standard that is subject
to FRAND determination and its
implementation, or including SEPs from
the same patent family as SEPs subject to
FRAND determination and involving one
or more of the parties to the FRAND
determination as a party; before or during
of the FRAND determination by a party,
the _**conciliator**_, or where _**he/she**_ has not
been appointed has not been established,
the competence centre, should be able to
terminate the procedure upon the request of
the other party _**.**_

(40) If a party initiates a procedure in a
jurisdiction outside the Union resulting in
legally binding and enforceable decisions
regarding the same standard that is subject
to FRAND determination and its
implementation, or including SEPs from
the same patent family as SEPs subject to
FRAND determination and involving one
or more of the parties to the FRAND
determination as a party; before or during
of the FRAND determination by a party,
the _**panel of conciliators**_, or where _**it**_ 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.

10566/24 LL/ec 36

# ANNEX GIP.INST EN

**Amendment 43**

**Proposal for a regulation**
**Recital 41**

_Text proposed by the Commission_ _Amendment_

(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 nonconfidential version of the report should
contain the proposal for FRAND terms and
conditions and the methodology used and
should be provided to the competence
centre for publication in order to inform
any subsequent FRAND determination
between the parties and other stakeholders
involved in similar negotiations. The report
would thus have a dual purpose to
encourage the parties to settle and to
provide transparency as to the process and
the recommended FRAND terms in cases
of disagreement.

(41) At the conclusion of the procedure,
the _**panel of conciliators**_ should make a
proposal recommending FRAND terms
and conditions. Either party should have
the option to accept or reject the proposal.
If the parties do not settle and/or do not
accept its proposal, the _**panel of**_
_**conciliators**_ should draft a report of the
FRAND determination. The report would
have a confidential and a non-confidential

version. The non-confidential version of
the report should contain the proposal for
FRAND terms and conditions and the
methodology used and should be provided
to the competence centre for publication in
order to inform any subsequent FRAND
determination between the parties and
other stakeholders involved in similar
negotiations. The report would thus have a
dual purpose to encourage the parties to
settle and to provide transparency as to the
process and the recommended FRAND
terms in cases of disagreement.

10566/24 LL/ec 37

# ANNEX GIP.INST EN

**Amendment 44**

**Proposal for a regulation**
**Recital 42**

_Text proposed by the Commission_ _Amendment_
(42) The Regulation respects the (42) The Regulation respects the
intellectual property rights of patent
owners _**(**_ Article 17(2) of EU Charter of owners _**, in line with**_
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 requirement to conduct a FRAND
enforcing individual SEPs. The limitation
on the exercise of intellectual property
rights is allowed under the EU Charter,
provided that the proportionality principle the EU Charter, provided that the
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 guaranteed [39] . In that essence of the rights guaranteed
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 level. It aims at dissemination of
technology for the mutual advantage of the
SEP holders and implementers. 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] ultimately binding. [40]

(42) The Regulation respects the (42) The Regulation respects the
intellectual property rights of patent intellectual property rights of patent
owners _**(**_ Article 17(2) of EU Charter of owners _**, in line with**_ Article 17(2) of EU
Fundamental Rights _**)**_, although it includes Charter of Fundamental Rights, although it
a restriction on the ability to enforce a SEP includes a restriction on the ability to
that has not been registered within a certain enforce a SEP that has not been registered
time-limit and introduces a requirement to within a certain time-limit and introduces a
conduct a FRAND determination before requirement to conduct a FRAND
enforcing individual SEPs. The limitation determination before enforcing individual
on the exercise of intellectual property SEPs. The limitation on the exercise of
rights is allowed under the EU Charter, intellectual property rights is allowed under
provided that the proportionality principle the EU Charter, provided that the
is respected. According to settled case-law, proportionality principle is respected.
fundamental rights can be restricted According to settled case-law, fundamental
provided that those restrictions correspond rights can be restricted provided that those
to objectives of general interest pursued by restrictions correspond to objectives of
the Union and do not constitute, with general interest pursued by the Union and
regard to the aim pursued, a do not constitute, with regard to the aim
disproportionate and intolerable pursued, a disproportionate and intolerable
interference which infringes the very interference which infringes the very
essence of the rights guaranteed [39] . In that essence of the rights guaranteed [39] . In that
respect, this Regulation is in the public respect, this Regulation is in the public
interest in that it provides a uniform, open interest in that it provides a uniform, open
and predictable information and outcome and predictable information and outcome
on SEPs for the benefit of SEP holder, on SEPs for the benefit of SEP holder,
implementers and end users, at Union implementers and end users, at Union
level. It aims at dissemination of level. It aims at dissemination of
technology for the mutual advantage of the technology for the mutual advantage of the
SEP holders and implementers. SEP holders and implementers.
Furthermore, the rules concerning the Furthermore, the rules concerning the
FRAND determination are temporary thus FRAND determination are temporary thus
limited and aimed at improving and limited and aimed at improving and
streamlining the process but are not streamlining the process but are not
ultimately binding. [40] ultimately binding. [40]

__________________
39 Judgment of the Court of Justice of 13 39 Judgment of the Court of Justice of 13
December 1979, Hauer v. Land Rheinland- December 1979, Hauer v. Land RheinlandPfalz, C-44/79, EU:C:1979:290, para. 32; Pfalz, C-44/79, EU:C:1979:290, para. 32;
judgment of the Court of Justice of 11 July judgment of the Court of Justice of 11 July
1989, Hermann Schräder HS Kraftfutter 1989, Hermann Schräder HS Kraftfutter
GmbH & Co. KG v. Hauptzollamt Gronau, GmbH & Co. KG v. Hauptzollamt Gronau,
C-256/87, EU:C:1999:332, para. 15, and C-256/87, EU:C:1999:332, para. 15, and
judgment of the Court of Justice of 13 July judgment of the Court of Justice of 13 July
1989, Hubert Wachauf v. Bundesamt für 1989, Hubert Wachauf v. Bundesamt für
Ernährung und Forstwirtschaft, C-5/88, Ernährung und Forstwirtschaft, C-5/88,

39 Judgment of the Court of Justice of 13
December 1979, Hauer v. Land RheinlandPfalz, 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,

10566/24 LL/ec 38

# ANNEX GIP.INST EN

EU:C:1989:321, paras. 17 and 18. EU:C:1989:321, paras. 17 and 18.
40 The conciliation procedure follows the 40 The conciliation procedure follows the
conditions for mandatory recourse to conditions for mandatory recourse to
alternative dispute settlement procedures as alternative dispute settlement procedures as
a condition for the admissibility of an a condition for the admissibility of an
action before the courts, as outlined in the action before the courts, as outlined in the
CJEU judgments; Joint Cases C-317/08 to CJEU judgments; Joint Cases C-317/08 to
C-320/08 Alassini and Others of 18 March C-320/08 Alassini and Others of 18 March

2010, and Case C-75/16 Menini and 2010, and Case C-75/16 Menini and
Rampanelli v. Banco Popolare Società Rampanelli v. Banco Popolare Società
Cooperativa of 14 June 2017, taking into Cooperativa of 14 June 2017, taking into
account the specificities of SEP licensing. account the specificities of SEP licensing.

10566/24 LL/ec 39

# ANNEX GIP.INST EN

**Amendment 45**

**Proposal for a regulation**
**Recital 43**

_Text proposed by the Commission_ _Amendment_

(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 CJEU [41], the provision of
a mandatory dispute resolution as a
precondition to access to competent courts
of Member States is 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.

(43) The FRAND determination is also (43) The FRAND determination is also
consistent with the right to an effective consistent with the right to an effective
remedy and to access to justice as laid remedy and to access to justice as laid
down in Article 47 of the Charter of down in Article 47 of the Charter of
Fundamental Rights of the European Union Fundamental Rights of the European Union
as the implementer and the SEP holder as the implementer and the SEP holder
fully retain that right. In case of failure to fully retain that right. In case of failure to
register within the prescribed time limit, register within the prescribed time limit,
the exclusion of the right to effective the exclusion of the right to effective
enforcement is limited and necessary and enforcement is limited and necessary and
meets objectives of general interest. As meets objectives of general interest. As
confirmed by the CJEU [41], the provision of confirmed by the CJEU [41], the provision of
a mandatory dispute resolution as a a mandatory dispute resolution as a
precondition to access to competent courts precondition to access to competent courts
of Member States is deemed to be of Member States is deemed to be
compatible with the principle of effective compatible with the principle of effective
judicial protection. The FRAND judicial protection. The FRAND
determination follows the conditions for determination follows the conditions for
mandatory dispute resolution outlined in mandatory dispute resolution outlined in
the CJEU judgments, taking into account the CJEU judgments, taking into account
the particular characteristics of SEP the particular characteristics of SEP
licensing. licensing. _**The FRAND determination**_

_**procedure also allows a deposit of a bond**_
_**by the alleged infringer as a provisional**_
_**injunction of a financial nature, which**_
_**can be requested in order to avoid**_
_**seriously restricting the alleged**_
_**infringer’s activity and ensuring that the**_
_**other party receives the corresponding**_
_**sum in the event of a claim for damages.**_
_**Moreover, the FRAND determination in**_
_**no way impairs the SEP holder’s ability to**_
_**receive compensation for an infringement**_
_**that occurred during the FRAND**_
_**determination in subsequent court**_
_**proceedings.**_

41 Judgment of the Court of Justice of 18 41 Judgment of the Court of Justice of 18
March 2010, Rosalba Alassini v Telecom March 2010, Rosalba Alassini v Telecom
Italia SpA (C-317/08), Filomena Califano Italia SpA (C-317/08), Filomena Califano
v Wind SpA (C-318/08), Lucia Anna v Wind SpA (C-318/08), Lucia Anna
Giorgia Iacono v Telecom Italia SpA (C- Giorgia Iacono v Telecom Italia SpA (C319/08) and Multiservice Srl v Telecom 319/08) and Multiservice Srl v Telecom
Italia SpA (C-320/08), Joined cases C- Italia SpA (C-320/08), Joined cases C317/08, C-318/08, C-319/08 and C-320/08, 317/08, C-318/08, C-319/08 and C-320/08,
EU:C:2010:146, and judgement of the EU:C:2010:146, and judgement of the
Court of Justice of 14 June 2017,Livio Court of Justice of 14 June 2017,Livio
Menini and Maria Antonia Rampanelli v Menini and Maria Antonia Rampanelli v

– –
Banco Popolare Società Cooperativa, C- Banco Popolare Società Cooperativa, C75/16, EU:C:2017:457 75/16, EU:C:2017:457

41 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 (C319/08) and Multiservice Srl v Telecom
Italia SpA (C-320/08), Joined cases C317/08, 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, C75/16, EU:C:2017:457

10566/24 LL/ec 40

# ANNEX GIP.INST EN

**Amendment 46**

**Proposal for a regulation**
**Recital 44**

_Text proposed by the Commission_ _Amendment_

(44) When determining the aggregate
royalties and making FRAND
determinations the conciliators should take
into account in particular any Union acquis
and judgments of the Court of Justice
pertaining to SEPs as well as guidance
issued under this Regulation, the
Horizontal Guidelines [42] and the

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

(44) When determining the aggregate
royalties and making FRAND
determinations the conciliators should take
into account in particular any Union acquis
and judgments of the Court of Justice
pertaining to SEPs as well as guidance
issued under this Regulation, the
Horizontal Guidelines [42] and the

Commission’s 2017 Communication
‘Setting out the EU approach to Standard
Essential Patents’. [43] Furthermore, the
_**panel of**_ 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.

__________________ __________________

42 Communication from the Commission –
Guidelines on the applicability of Article
101 of the Treaty on the Functioning of the
European Union to horizontal co-operation
agreements, OJ C 11, 14.01.2011, pp. 1
(currently under review)

43 Communication on Setting out the EU
approach to Standard Essential Patents,
COM(2017)712 final, 29.11.2017.

42 Communication from the Commission –
Guidelines on the applicability of Article
101 of the Treaty on the Functioning of the
European Union to horizontal co-operation
agreements, OJ C 11, 14.01.2011, pp. 1
(currently under review)

43 Communication on Setting out the EU
approach to Standard Essential Patents,
COM(2017)712 final, 29.11.2017.

10566/24 LL/ec 41

# ANNEX GIP.INST EN

**Amendment 47**

**Proposal for a regulation**
**Recital 45**

_Text proposed by the Commission_ _Amendment_

_**(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.**_

**Amendment 48**

**Proposal for a regulation**
**Recital 45 a (new)**

_**deleted**_

_Text proposed by the Commission_ _Amendment_

_**(45a) In order to avoid a possible negative**_
_**impact on companies which are**_
_**established in the Union as well as engage**_
_**and compete successfully as regards the**_
_**development of global technologies**_
_**through standardisation, the Commission**_
_**should evaluate the impact that the**_
_**essentiality check system, the aggregate**_
_**royalties determination system and the**_
_**FRAND determination system have on the**_
_**competitiveness of Union SEP holders on**_
_**a global level. Based on the outcome of**_
_**that evaluation, the Commission should,**_
_**where necessary, present a legislative**_
_**proposal in order to adapt the systems.**_
_**The role of patent pools, including those**_
_**created by SEP implementers, should be**_
_**evaluated by the Commission in order to**_
_**assess their impact once this Regulation**_
_**has entered into force, notably in terms of**_
_**their impact on the competitiveness on the**_
_**market.**_

10566/24 LL/ec 42

# ANNEX GIP.INST EN

**Amendment 49**

**Proposal for a regulation**
**Recital 46**

_Text proposed by the Commission_ _Amendment_

(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.

(46) SMEs may be involved in SEP
licensing both as SEP holders and _**SEP**_
implementers. While there are currently a
few SME SEP holders, the efficiencies
produced with this Regulation _**should also**_
facilitate the licensing of their SEP.
Additional conditions are necessary to
relieve the cost burden on such SMEs such

as reduced administration _**burdens and**_
_**administrative**_ fees and potentially reduced
fees for essentiality checks and conciliation
in addition to free support and trainings _**, so**_
_**that they are better placed to engage in**_
_**SEP related matters and also standard**_
_**development**_ . The SEPs of micro and small
enterprises and _**start-ups**_ 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
_**and start-up**_ 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. _**In this context, it is important to**_
_**ensure that SMEs and start-ups benefit**_
_**from a one-stop shop set up by the**_
_**competence centre which identifies**_
_**relevant licensees and licensors for the**_
_**SMEs and advises them, free of charge,**_
_**on SEPs. To that end, the competence**_
_**centre should set up a SEP Licensing**_
_**Assistance Hub for SMEs and start-ups**_
_**which could also provide, under certain**_
_**conditions, assistance with regard to**_
_**judicial support, such as a pro bono legal**_
_**representative during court proceedings.**_

10566/24 LL/ec 43

# ANNEX GIP.INST EN

**Amendment 50**

**Proposal for a regulation**
**Recital 46 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(46a) While advantages should be granted**_
_**to SMEs, they should not be susceptible to**_
_**misuses. In this regard, patent assertion**_
_**entities, which may be characterised by an**_
_**“obtain and assert” business model and**_

_**which have the purpose of generating**_
_**revenues through licensing fees, royalties**_
_**and damage compensation, should not**_
_**benefit from exemptions and the help**_
_**from the competence centre provided for**_
_**in this Regulation.**_

**Amendment 51**

**Proposal for a regulation**
**Recital 46 b (new)**

_Text proposed by the Commission_ _Amendment_

_**(46b) The support mechanisms, such as**_
_**IP vouchers for SMEs, have been**_
_**effective in assisting SMEs to protect their**_
_**IP rights. The period of application of**_
_**those mechanisms should be prolonged**_
_**beyond 2024.**_

10566/24 LL/ec 44

# ANNEX GIP.INST EN

**Amendment 52**

**Proposal for a regulation**
**Recital 47**

_Text proposed by the Commission_ _Amendment_

(47) In order to supplement certain nonessential 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-Making [44] . 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.

(47) In order to supplement certain nonessential 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
_**implementations**_ 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-Making [44] . In
particular, to ensure equal participation in
the preparation of delegated acts, the
European Parliament and the Council
receive all documents at the same time as
Member States _**’**_ experts, and their experts
systematically have access to meetings of
Commission expert groups dealing with the
preparation of delegated acts.

__________________ __________________

44 OJ L 123, 12.5.2016, p. 1. 44 OJ L 123, 12.5.2016, p. 1.

10566/24 LL/ec 45

# ANNEX GIP.INST EN

**Amendment 53**

**Proposal for a regulation**
**Recital 48**

_Text proposed by the Commission_ _Amendment_

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

(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 _**. Evaluators**_

_**and conciliators should be of good repute**_
_**and possess sufficient knowledge, skills**_
_**and experience to perform their duties**_ .
The Commission should also adopt the
technical rules for the selection of a sample
of SEPs for essentiality checks and the
methodology for the conduct of such
essentiality checks by evaluators and peer
evaluators. The Commission should also
determine any administrative fees for its
services in relation to the tasks under this
Regulation and fees for the services _**of**_
evaluators, experts and conciliators,
derogations thereof and payment methods
and adapt them as necessary. The
Commission should also determine the
standards or parts thereof that have been
published before the entry into force of this
Regulation, for which SEPs can be
registered. Those powers should be
exercised in accordance with Regulation
(EU) No 182/2011 of the European
Parliament and of the Council. [45]

__________________ __________________

45 Regulation (EU) No 182/2011 of the
European Parliament and of the Council
laying down the rules and general
principles concerning mechanisms for
control by the Member States of the
Commission’s exercise of implementing
powers (OJ L 55, 28.2.2011, p. 13.)

45 Regulation (EU) No 182/2011 of the
European Parliament and of the Council
laying down the rules and general
principles concerning mechanisms for
control by the Member States of the
Commission’s exercise of implementing
powers (OJ L 55, 28.2.2011, p. 13.)

10566/24 LL/ec 46

# ANNEX GIP.INST EN

**Amendment 54**

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

_Text proposed by the Commission_ _Amendment_

2. 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.**_

**Amendment 55**

**Proposal for a regulation**
**Article 1 – paragraph 3**

2. This Regulation shall apply to
patents that are _**in force in one or more**_
_**Member States and that a SEP holder**_

_**claims to be**_ essential to a standard that has
been published by a standard development
organisation, _**after entry into force of this**_
_**Regulation regardless of whether**_ the SEP
holder has _**or has not**_ made a commitment

to license its SEPs on fair, reasonable and
non-discriminatory (FRAND) terms and
conditions _**.**_

_Text proposed by the Commission_ _Amendment_

3. 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**_ .

3. Articles 17 and 18 and Article 34(1)
shall not apply _**where there is sufficient**_
_**evidence that SEP licensing negotiations**_
_**on FRAND terms and conditions do not**_

_**give rise to significant difficulties or**_
_**inefficiencies affecting the functioning of**_
_**the internal market as regards**_ identified
_**implementations of certain standards or**_
_**parts thereof. Such implementations,**_
_**standards and parts thereof shall be**_
_**identified pursuant to the procedure set**_
_**out in Article 65b**_ .

10566/24 LL/ec 47

# ANNEX GIP.INST EN

**Amendment 56**

**Proposal for a regulation**
**Article 1 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

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**_ .

**Amendment 57**

**Proposal for a regulation**
**Article 1 – paragraph 5**

4. _**Without prejudice to paragraph 2 of**_
_**this Article, this Regulation shall also**_
_**apply to patents in force in one or more**_
_**Member States and that a SEP holder**_

_**claims to be essential to a standard**_

_**published by a standard development**_
_**organisation before the entry into force of**_
_**this Regulation, where the functioning of**_
_**the internal market is severely distorted**_
_**due**_ to significant difficulties or
inefficiencies _**in the licensing of SEPs for**_
_**certain implementations, standards and**_
_**parts thereof. Such implementations**_,
standards _**and**_ parts thereof _**shall be**_
_**identified pursuant to the procedure set**_
_**out in Article 65c**_ .

_Text proposed by the Commission_ _Amendment_

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

5. This Regulation shall _**not**_ apply to
_**SEPs that are subject to a royalty-free**_
_**intellectual property policy, except when**_
_**such SEPs are part of a portfolio of**_
_**patents licensed for royalties**_ .

10566/24 LL/ec 48

# ANNEX GIP.INST EN

**Amendment 58**

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

_Text proposed by the Commission_ _Amendment_

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

**Amendment 59**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 3**

(1) ‘standard essential patent’ or ‘SEP’
means any patent that _**a SEP holder claims**_
_**to be**_ is essential to a standard;

_Text proposed by the Commission_ _Amendment_

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

**Amendment 60**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 5 a (new)**

(3) ‘standard’ means a technical
specification, adopted by a standard
development organisation, for repeated or
continuous application;

_Text proposed by the Commission_ _Amendment_

_**(5a)**_ _**‘implementation’ means a specific**_
_**scenario where a particular standardised**_
_**technology or method is applied to fulfil a**_
_**given purpose or function of a product,**_
_**process, service or system, irrespective of**_
_**the level in the value chain;**_

10566/24 LL/ec 49

# ANNEX GIP.INST EN

**Amendment 61**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 6**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 62**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 7**

(6) ‘SEP holder’ means an owner of a
SEP or a person holding an exclusive
licence for a SEP in one _**or**_ more Member

States;

_Text proposed by the Commission_ _Amendment_

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

**Amendment 63**

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

(7) ‘implementer’ means a natural or
legal person that implements, or intends to
implement, a standard in a product,
process, service or system _**on the Union**_
_**market**_ ;

_Text proposed by the Commission_ _Amendment_

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

(10) ‘aggregate royalty’ means the _**total**_
amount of _**money paid or required to be**_
_**paid to license**_ all patents essential to a
standard;

10566/24 LL/ec 50

# ANNEX GIP.INST EN

**Amendment 64**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 10 a (new)**

_Text proposed by the Commission_ _Amendment_

_**-**_
_**(10a) ‘royalty**_ _**free’ means available**_
_**without payment of a royalty or without**_
_**an agreement for any other consideration,**_
_**whether monetary or non-monetary;**_

**Amendment 65**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 11**

_Text proposed by the Commission_ _Amendment_

(11) ‘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;

**Amendment 66**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 13**

(11) ‘patent pool’ means an entity _**,**_ created
by an agreement between two or more SEP
holders _**or a consortium in which multiple**_
_**SEP holders agree**_ to license one or more
of their _**SEPs to each other or**_ to third
parties;

_Text proposed by the Commission_ _Amendment_

(13) ‘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;

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

10566/24 LL/ec 51

# ANNEX GIP.INST EN

**Amendment 67**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 16**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 68**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 17 a (new)**

(16) ‘patent family’ means a collection of
patent _**applications having at least one**_
_**priority in common, including the priority**_
_**documents themselves**_ ;

_Text proposed by the Commission_ _Amendment_

_**(17a) ‘conciliator’ means any person that**_
_**has been appointed to mediate among**_
_**parties in establishing an aggregate**_
_**royalty in accordance with Article 17, to**_
_**serve on a panel that provides an opinion**_
_**on an aggregate royalty in accordance**_
_**with Article 18 and to serve in the**_

_**FRAND determination in accordance**_

_**with Title VI, who is independent and**_
_**impartial and does not have any direct or**_
_**indirect conflict of interest;**_

**Amendment 69**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 17 b (new)**

_Text proposed by the Commission_ _Amendment_

_**(17b) ‘evaluator’ means any person that**_
_**has been appointed to conduct essentiality**_
_**checks in accordance with Title V, who is**_
_**independent and impartial, and does not**_
_**have any direct or indirect conflict of**_
_**interest;**_

10566/24 LL/ec 52

# ANNEX GIP.INST EN

**Amendment 70**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 17 c (new)**

_Text proposed by the Commission_ _Amendment_

_**(17c) ‘peer evaluator’ means any person**_
_**that has been appointed to conduct a peer**_
_**evaluation, who is independent and**_
_**impartial, and does not have any direct or**_
_**indirect conflict of interest;**_

**Amendment 71**

**Proposal for a regulation**
**Article 2 – paragraph 1 – point 18 a (new)**

_Text proposed by the Commission_ _Amendment_

_**(18a) ‘patent assertion entity’ means an**_
_**entity that primarily derives its revenue**_
_**from the enforcement or licensing of**_
_**patents, including any damages or**_
_**monetary awards from the assertion of**_
_**such patents, and that does not engage in**_
_**the production, manufacture, sale or**_
_**distribution of products or services**_
_**utilising the patented inventions or in the**_
_**research and development of such**_
_**inventions, that is not an educational or**_
_**research institution or technology transfer**_
_**organisation facilitating the**_
_**commercialisation of technological**_
_**innovations generated by them, and that is**_
_**not an individual inventor asserting**_
_**patents originally granted to that inventor**_
_**or patents that cover technologies**_
_**originally developed by that inventor.**_

10566/24 LL/ec 53

# ANNEX GIP.INST EN

**Amendment 72**

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

_Text proposed by the Commission_ _Amendment_

(a) set up and maintain an electronic
register and an electronic database for
SEPs;

**Amendment 73**

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

(a) set up and maintain an electronic
register and an electronic database for
SEPs _**in accordance with Articles 4 and 5**_ ;

_Text proposed by the Commission_ _Amendment_

(b) set up and manage rosters of
evaluators and conciliators;

**Amendment 74**

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

(b) set up and manage rosters of
evaluators and conciliators _**in accordance**_

_**with Article 27**_ ;

_Text proposed by the Commission_ _Amendment_

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

**Amendment 75**

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

(c) set up and administer a system for
assessment of the essentiality of SEPs _**in**_
_**accordance with Articles 28 to 33;**_

_Text proposed by the Commission_ _Amendment_

(d) set up and administer the process for
the FRAND determination;

(d) set up and administer the process for
the FRAND determination _**in accordance**_

_**with Articles 34 to 58**_ ;

10566/24 LL/ec 54

# ANNEX GIP.INST EN

**Amendment 76**

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

_Text proposed by the Commission_ _Amendment_

(f) administer a process for aggregate
royalty _**determination**_ ;

**Amendment 77**

**Proposal for a regulation**
**Article 3 – paragraph 2 – point g – point i**

(f) administer a process for _**facilitating**_
_**agreements on and the determination of**_
_**an**_ aggregate royalty _**in accordance with**_
_**Articles 17 and 18**_ ;

_Text proposed by the Commission_ _Amendment_

(i) publishing the results and reasoned
opinions of the essentiality checks and
non-confidential _**reports**_ of the FRAND
determinations;

**Amendment 78**

**Proposal for a regulation**
**Article 3 – paragraph 2 – point g – point ii**

(i) publishing the results and reasoned
opinions of the essentiality checks and
non-confidential _**opinions**_ of the FRAND
determinations _**in accordance with Article**_

_**33(1) and Article 57(3)**_ ;

_Text proposed by the Commission_ _Amendment_

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

(ii) enabling access to case-law
(including alternative dispute resolution)
on SEPs, including from third country
jurisdictions _**in accordance with Article**_
_**13(3)**_ ;

10566/24 LL/ec 55

# ANNEX GIP.INST EN

**Amendment 79**

**Proposal for a regulation**
**Article 3 – paragraph 2 – point g – point iii**

_Text proposed by the Commission_ _Amendment_

(iii) compiling non-confidential
information on FRAND determination
methodologies and FRAND royalties;

**Amendment 80**

**Proposal for a regulation**
**Article 3 – paragraph 2 – point g – point iv**

(iii) compiling non-confidential
information on FRAND determination
methodologies and FRAND royalties _**in**_
_**accordance with Article 13(4) and (5)**_ ;

_Text proposed by the Commission_ _Amendment_

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

**Amendment 81**

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

(iv) enabling access to SEP-related rules
of third countries _**in accordance with**_

_**Article 12**_ ;

_Text proposed by the Commission_ _Amendment_

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

**Amendment 82**

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

(h) _**set up and maintain a SEP**_
_**Licensing Assistance Hub for SMEs and**_
_**start-ups and**_ provide training, support and
general advice on SEPs to SMEs _**and start-**_
_**ups in accordance with Article 61**_ ;

_Text proposed by the Commission_ _Amendment_

(j) raise awareness about SEP licensing _**,**_
_**including SEP licensing in the value**_
_**chain**_ .

(j) _**establish a dedicated working group**_
_**on conditions for licensing SEPs in the**_
_**value chain and**_ raise awareness about
SEP licensing.

10566/24 LL/ec 56

# ANNEX GIP.INST EN

**Amendment 83**

**Proposal for a regulation**
**Article 4 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 84**

**Proposal for a regulation**
**Article 4 – paragraph 2**

1. A Union register for SEPs ('the
register') _**shall be set up and maintained in**_
_**an electronic format by the competence**_

_**centre**_ .

_Text proposed by the Commission_ _Amendment_

_**2.**_ _**The register shall be maintained in**_
_**electronic format by the competence**_

_**centre.**_

**Amendment 85**

**Proposal for a regulation**
**Article 4 – paragraph 3 – point b**

_**deleted**_

_Text proposed by the Commission_ _Amendment_

(b) registered SEPs _**identification**_,
including the country of registration and
patent number;

**Amendment 86**

**Proposal for a regulation**
**Article 4 – paragraph 3 – point c**

(b) _**identification of**_ registered SEPs,
including the country of registration and
patent number;

_Text proposed by the Commission_ _Amendment_

(c) the standard version, the technical
specification and the _**specific**_ sections of
the technical specification for which the
patent is considered essential;

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

10566/24 LL/ec 57

# ANNEX GIP.INST EN

**Amendment 87**

**Proposal for a regulation**
**Article 4 – paragraph 3 – point f**

_Text proposed by the Commission_ _Amendment_

(f) if the SEP holder is part of _**a group**_
_**of**_ companies, the name, address and
contact details of the parent company;

**Amendment 88**

**Proposal for a regulation**
**Article 4 – paragraph 3 – point h**

(f) if the SEP holder is _**an affiliate,**_
_**subsidiary or**_ part of _**one or more**_
companies, the name, address and contact
details of the parent company;

_Text proposed by the Commission_ _Amendment_

(h) the existence of any _**public**_ standard
terms and conditions, including SEP
holder’s royalty and discount policies;

**Amendment 89**

**Proposal for a regulation**
**Article 4 – paragraph 3 – point i**

(h) the existence of any _**publicly**_
_**available**_ standard terms and conditions,
including SEP holder’s royalty _**, royalty-**_
_**free**_ and discount policies;

_Text proposed by the Commission_ _Amendment_

(i) the existence of any _**public**_ standard
terms and conditions for SEP licensing to
SMEs;

**Amendment 90**

**Proposal for a regulation**
**Article 4 – paragraph 3 – point j**

(i) the existence of any _**publicly**_
_**available**_ standard terms and conditions for
SEP licensing to SMEs _**and start-ups**_ ;

_Text proposed by the Commission_ _Amendment_

(j) availability for licensing through
patent pools, where applicable;

(j) availability for licensing through
patent pools _**and the name of the**_
_**respective patent pool**_, where applicable;

10566/24 LL/ec 58

# ANNEX GIP.INST EN

**Amendment 91**

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

_Text proposed by the Commission_ _Amendment_

(c) information on whether an
essentiality check or peer evaluation have
been performed and reference _**to the result**_ ;

**Amendment 92**

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

(c) _**any**_ information on whether an
essentiality check or peer evaluation have
been performed and, _**unless not possible**_
_**due to contractual limits agreed upon by**_
_**the parties,**_ _**also a**_ reference _**to the**_
_**outcome of the essentiality check**_ ;

_Text proposed by the Commission_ _Amendment_

(d) information on whether the SEP is
expired _**or**_ invalidated by a final judgment
of a competent court of a Member State;

**Amendment 93**

**Proposal for a regulation**
**Article 4 – paragraph 4 – point f**

(d) information on whether the SEP is
expired _**,**_ invalidated _**or deemed**_
_**unenforceable**_ by a final judgment of a
competent court of a Member State;

_Text proposed by the Commission_ _Amendment_

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

(f) date of publication of information
pursuant to Article 19(1);

10566/24 LL/ec 59

# ANNEX GIP.INST EN

**Amendment 94**

**Proposal for a regulation**
**Article 4 – paragraph 4 a (new)**

_Text proposed by the Commission_ _Amendment_

_**4a.**_ _**Prior to registering their patents,**_
_**SEP holders may voluntarily submit their**_
_**SEPs for essentiality checks to the**_
_**competence centre.**_

**Amendment 95**

**Proposal for a regulation**
**Article 5 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. The competence centre shall
_**establish**_ and maintain an electronic

database for SEPs.

**Amendment 96**

**Proposal for a regulation**
**Article 5 – paragraph 2 – point b**

1. The competence centre shall _**set up**_
and maintain an electronic database for

SEPs.

_Text proposed by the Commission_ _Amendment_

(b) _**public**_ standard terms and conditions,
including SEP holder’s royalty and
discount policies pursuant to Article 7, first
paragraph, point (b), if available;

**Amendment 97**

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

(b) _**publicly available**_ standard terms and
conditions, including SEP holder’s royalty _**,**_
_**royalty-free**_ and discount policies pursuant
to Article 7, first paragraph, point (b), if
available;

_Text proposed by the Commission_ _Amendment_

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

(c) _**publicly available**_ standard terms and
conditions for SEP licensing to SMEs _**, and**_
_**start-ups**_ pursuant to Article 62(1),
_**including royalty-free access,**_ if available;

10566/24 LL/ec 60

# ANNEX GIP.INST EN

**Amendment 98**

**Proposal for a regulation**
**Article 5 – paragraph 2 – point d**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 99**

**Proposal for a regulation**
**Article 5 – paragraph 3**

(d) information regarding known
products, processes, services or systems
and implementations _**and, where available,**_
_**any known market data**_ pursuant to Article
7, first paragraph, point _**(a)**_ ;

_Text proposed by the Commission_ _Amendment_

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

**Amendment 100**

**Proposal for a regulation**
**Article 5 – paragraph 4**

3. Access to the information pursuant to
paragraph (2), points (f), (h), (i), (j) and (k)
_**of this Article**_ _**shall be available to any**_
_**third party subject to registration with the**_
_**competence centre and**_ may be subject to
the payment of a _**reasonable fee, as set out**_
_**in Article 63**_ .

_Text proposed by the Commission_ _Amendment_

4. However, public authorities,
including courts, shall have full access to
the information in the database referred to
in paragraph (2) free of charge subject to
registration with the competence centre.

4. However, public authorities,
including courts, shall have full access to
the information in the database referred to
in paragraph (2) free of charge subject to
registration with the competence centre.
_**Academic institutions may also request**_
_**access to the information free of charge**_
_**solely for the purpose of conducting**_
_**academic tasks.**_

10566/24 LL/ec 61

# ANNEX GIP.INST EN

**Amendment 101**

**Proposal for a regulation**
**Article 6 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. When a party requests that data and
documents of the database be kept
confidential, that party shall provide a nonconfidential 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.

**Amendment 102**

**Proposal for a regulation**
**Article 6 – paragraph 5**

1. When a party requests that data and
documents of the database be kept
confidential, that party shall provide _**a**_
_**reasoned statement justifying this**_
_**confidentiality and, where reasonably**_
_**possible,**_ 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 nonconfidential version.

_Text proposed by the Commission_ _Amendment_

5. 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.

5. 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
_**reasonable**_ fee.

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# ANNEX GIP.INST EN

**Amendment 103**

**Proposal for a regulation**
**Article 7 – paragraph 1 – point a**

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 104**

**Proposal for a regulation**
**Article 7 – paragraph 1 – point b**

(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 _**and, where**_
_**available, any market data**_, to the extent
such information is known to the SEP

holder.

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 105**

**Proposal for a regulation**
**Article 8 – title**

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

centre.

_Text proposed by the Commission_ _Amendment_

Information _**pertaining to**_ essentiality Information _**on**_ essentiality

10566/24 LL/ec 63

# ANNEX GIP.INST EN

**Amendment 106**

**Proposal for a regulation**
**Article 8 – paragraph 1 – point a**

_Text proposed by the Commission_ _Amendment_

(a) 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.

**Amendment 107**

**Proposal for a regulation**
**Article 8 – paragraph 1 – point b**

(a) a final decision on essentiality for a
registered SEP made by a competent court
of a Member State within _**2**_ months _**after**_
_**the**_ decision _**has become final**_ ;

_Text proposed by the Commission_ _Amendment_

(b) 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.

**Amendment 108**

**Proposal for a regulation**
**Article 9 – paragraph 1 – introductory part**

(b) any _**other**_ essentiality check by an
independent evaluator in the context of, _**for**_
_**example, a patent**_ pool, identifying the
SEP registration number, the identity of the
patent pool and its administrator, and the
evaluator.

_Text proposed by the Commission_ _Amendment_

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

1. Patent pools shall publish on their
websites at least the following _**accurate**_
_**and updated**_ information and inform the
competence centre thereof:

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**Amendment 109**

**Proposal for a regulation**
**Article 9 – paragraph 1 – point g**

_Text proposed by the Commission_ _Amendment_

(g) list of products, services and
processes that may be licensed through the
patent pool _**or the entity**_ ;

**Amendment 110**

**Proposal for a regulation**
**Article 9 – paragraph 1 – point h**

(g) list of products, services and
processes that may be licensed through the
patent pool;

_Text proposed by the Commission_ _Amendment_

(h) royalties and discount policy _**per**_
_**product category**_ ;

**Amendment 111**

**Proposal for a regulation**
**Article 9 – paragraph 1 – point i**

(h) royalties _**, royalty-free**_ and discount
_**policies per implementation including**_
_**information on royalty calculation per**_
_**SEP owner in the pool and aggregate**_
_**royalty rate, if applicable**_ ;

_Text proposed by the Commission_ _Amendment_

(i) standard licence agreement per
_**product category**_ ;

(i) standard licence agreement per
_**implementation**_ ;

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**Amendment 112**

**Proposal for a regulation**
**Article 9 – paragraph 1 – point j**

_Text proposed by the Commission_ _Amendment_

(j) list of licensors in each _**product**_
_**category**_ ;

**Amendment 113**

**Proposal for a regulation**
**Article 9 – paragraph 1 – point k**

(j) list of licensors in each
_**implementation**_ ;

_Text proposed by the Commission_ _Amendment_

(k) list of licensees for each _**product**_
_**category**_ .

**Amendment 114**

**Proposal for a regulation**
**Article 9 – paragraph 1 a (new)**

(k) list of licensees for each
_**implementation**_ .

_Text proposed by the Commission_ _Amendment_

_**1a.**_ _**The competence centre shall verify**_
_**the information submitted by patent pools**_
_**in accordance with paragraph 1 on a**_
_**regular basis and at least once a year,**_
_**based on a methodology it develops for**_
_**this purpose, ensuring that the**_
_**verification process is thorough,**_
_**transparent and consistent. That**_
_**methodology shall be made available to**_
_**patent pools and to other stakeholders for**_
_**the sake of transparency.**_

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**Amendment** **115**

**Proposal for a regulation**
**Article 9 – paragraph 1 b (new)**

_Text proposed by the Commission_ _Amendment_

_**1b.**_ _**The competence centre shall**_
_**prepare a report detailing the outcomes of**_
_**its verification, including with regard to**_
_**patent pools’ compliance with paragraph**_
_**1, any discrepancies or missing**_
_**information identified, and the corrective**_
_**actions taken or recommended. That**_

_**report shall be submitted to the**_
_**Commission within one month following**_
_**the completion of each verification cycle.**_

**Amendment 116**

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

_Text proposed by the Commission_ _Amendment_

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

**Amendment 117**

**Proposal for a regulation**
**Article 10 – paragraph 1 – point b**

1. Competent courts of Member States
shall notify the competence centre within _**2**_
months _**after the decision**_ concerning SEPs
_**has become final**_ on:

_Text proposed by the Commission_ _Amendment_

(b) infringement _**proceedings**_ ; (b) infringements;

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**Amendment 118**

**Proposal for a regulation**
**Article 11 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 119**

**Proposal for a regulation**
**Article 12 – paragraph 1**

1. Persons involved in alternative
dispute resolution proceedings concerning
SEPs in force in a Member State shall
disclose to the competence centre within _**4**_
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.

_Text proposed by the Commission_ _Amendment_

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

1. The competence centre shall collect _**,**_
_**duly verify**_ and _**promptly**_ publish
information on any SEP related rules in
any third country _**in the database**_ . _**The**_
_**competence centre may also collect**_
_**information on compliance with this**_
_**Regulation in third countries as well as**_
_**monitor its impact on implementers.**_

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**Amendment 120**

**Proposal for a regulation**
**Article 12 – paragraph 2**

_Text proposed by the Commission_ _Amendment_

2. 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.

**Amendment 121**

**Proposal for a regulation**
**Article 12 – paragraph 2 a (new)**

2. 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 _**after verifying**_
_**its accuracy**_ .

_Text proposed by the Commission_ _Amendment_

_**2a.**_ _**In order to facilitate effective**_
_**implementation of this Regulation, the**_
_**competence centre may cooperate, engage**_
_**and exchange information with, amongst**_
_**others, authorities of third countries and**_
_**international organisations dealing with**_
_**SEPs, in particular as regards the**_
_**information on SEP related rules in third**_
_**countries or the prevention of parallel**_
_**proceedings.**_

**Amendment 122**

**Proposal for a regulation**
**Article 13 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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

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

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# ANNEX GIP.INST EN

**Amendment 123**

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

_Text proposed by the Commission_ _Amendment_

_**(ca) making available to interested**_
_**persons SEPs, standards and**_
_**implementations, with the use of easily**_
_**accessible research tools and reasonably**_
_**understandable search results;**_

**Amendment 124**

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

_Text proposed by the Commission_ _Amendment_

_**(da) facilitating assessments of SEP**_
_**licensing practices and their impact on**_
_**the internal market, innovation and**_
_**access to standardised technology.**_

**Amendment 125**

**Proposal for a regulation**
**Article 14 – paragraph 1 – introductory part**

_Text proposed by the Commission_ _Amendment_

1. 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:

1. Holders of _**patents**_ in force in one or
more Member States which _**are claimed to**_

_**be**_ essential to a standard for which

FRAND commitments have _**or have not**_
been made shall notify to the competence
centre, where possible through the standard
development organisation or through a
joint notification, the following
information:

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**Amendment 126**

**Proposal for a regulation**
**Article 14 – paragraph 3**

_Text proposed by the Commission_ _Amendment_

3. 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).

**Amendment 127**

**Proposal for a regulation**
**Article 14 – paragraph 5**

3. In the absence of the notification
under paragraph (1), any holder of a SEP in
force in one or more Member _**States**_ 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).

_Text proposed by the Commission_ _Amendment_

5. 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.

**Amendment 128**

**Proposal for a regulation**
**Article 14 – paragraph 6**

5. The competence centre shall also
notify the relevant standard development
organisation of the _**notification**_ . 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.

_Text proposed by the Commission_ _Amendment_

6. 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.

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

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**Amendment 129**

**Proposal for a regulation**
**Article 15 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. Holders of SEPs in force in one or

more Member States for which FRAND
commitments have been made may jointly
notify the competence centre the aggregate
royalty for _**the**_ SEPs covering a standard.

**Amendment 130**

**Proposal for a regulation**
**Article 17 – title**

1. Holders of SEPs in force in one or

more Member States for which FRAND

commitments have _**or have not**_ been made
may jointly notify the competence centre
the aggregate royalty for _**all**_ SEPs covering
a standard.

_Text proposed by the Commission_ _Amendment_

Process for facilitating agreements on
aggregate royalty _**determinations**_

**Amendment 131**

**Proposal for a regulation**
**Article 17 – paragraph 3 – point e**

Process for facilitating agreements _**between**_
_**SEP holders**_ on aggregate royalty

_Text proposed by the Commission_ _Amendment_

(e) the estimated percentage of SEPs
they own individually and collectively
from all _**potential**_ SEPs claimed for the
standard.

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

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**Amendment 132**

**Proposal for a regulation**
**Article 17 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

4. 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.

**Amendment 133**

**Proposal for a regulation**
**Article 17 – paragraph 7**

4. The competence centre shall _**publish**_
_**the request and invite other**_ SEP holders to
express their interest in participating in the
process and to provide their estimated
percentage of SEPs from all SEPs for the
standard.

_Text proposed by the Commission_ _Amendment_

7. Where the SEP holders fail to make _**a**_
joint notification within 6 months from the
appointment of the conciliator, the
conciliator shall terminate the process.

**Amendment 134**

**Proposal for a regulation**
**Article 17 – paragraph 8**

7. Where the SEP holders fail to make
_**an agreement regarding the**_ joint
notification _**submission of an aggregate**_
_**royalty**_ within 6 months from the
appointment of the conciliator, the
conciliator shall terminate the process.

_Text proposed by the Commission_ _Amendment_

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

8. If the _**SEP holders**_ agree on a joint
notification, the procedure set out in
Article 15(1), (2) and (4) shall apply.

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**Amendment 135**

**Proposal for a regulation**
**Article 18 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. A SEP holder or an implementer may
request the competence centre for a nonbinding expert opinion on a _**global**_
aggregate royalty.

**Amendment 136**

**Proposal for a regulation**
**Article 18 – paragraph 4**

1. A SEP holder or an implementer may
request the competence centre for a nonbinding expert opinion on _**an**_ aggregate
royalty. _**An implementer may make this**_
_**request, even if an agreement amongst**_
_**SEP holders has already been reached,**_
_**including through the procedure laid**_
_**down in Articles 15 to 17.**_

_Text proposed by the Commission_ _Amendment_

4. The competence centre shall notify
the relevant 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.

4. The competence centre shall notify
the relevant standard development
organisation and all _**relevant**_ 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.

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**Amendment 137**

**Proposal for a regulation**
**Article 18 – paragraph 5**

_Text proposed by the Commission_ _Amendment_

5. 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.

**Amendment 138**

**Proposal for a regulation**
**Article 18 – paragraph 6**

5. 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 _**and other stakeholders**_ shall
provide information on any relevant
_**existing or potential**_ implementations of
the standard, including any relevant market
share in the Union.

_Text proposed by the Commission_ _Amendment_

6. 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.

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

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**Amendment 139**

**Proposal for a regulation**
**Article 18 – paragraph 8 – introductory part**

_Text proposed by the Commission_ _Amendment_

8. Following the appointment, the panel
shall request the participating SEP holders
to _**, within one month**_ :

**Amendment 140**

**Proposal for a regulation**
**Article 18 – paragraph 8 – point b**

8. _**Within one month**_ following the
appointment, the panel shall request the
participating SEP holders to:

_Text proposed by the Commission_ _Amendment_

(b) submit justification on the
impossibility to propose an aggregate
royalty due to technological, economic, or
other considerations _**.**_

**Amendment 141**

**Proposal for a regulation**
**Article 18 – paragraph 8 – point b a (new)**

(b) submit justification on the
impossibility to propose an aggregate
royalty due to technological, economic, or
other considerations **;** _**and**_

_Text proposed by the Commission_ _Amendment_

_**(ba) provide evidence or observations to**_
_**assist the panel in deciding on aggregate**_
_**royalty.**_

**Amendment 142**

**Proposal for a regulation**
**Article 18 – paragraph 8 a (new)**

_Text proposed by the Commission_ _Amendment_

_**8a.**_ _**The panel shall permit participants**_
_**to submit responses to the submissions**_
_**provided for in paragraph 8 and reactions**_
_**to those responses.**_

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**Amendment 143**

**Proposal for a regulation**
**Article 18 – paragraph 9 – introductory part**

_Text proposed by the Commission_ _Amendment_

9. The panel shall duly consider the
submissions provided for in _**paragraph 8**_
and decide:

**Amendment 144**

**Proposal for a regulation**
**Article 18 – paragraph 9 – point a**

9. The panel shall duly consider the
submissions _**and responses**_ provided for in
_**paragraphs 8 and 8a**_ and decide:

_Text proposed by the Commission_ _Amendment_

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

**Amendment 145**

**Proposal for a regulation**
**Article 18 – paragraph 10**

(a) to _**grant a suspension of**_ the
procedure for an initial period of no longer
than 6 months, which can be further
extended _**for another period of 3 months**_
on the basis of a duly justified request by
one of the participating SEP holders, or

_Text proposed by the Commission_ _Amendment_

10. 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.

10. The panel shall provide the expert
opinion within 8 months of the end of the
suspension period pursuant to paragraph
_**9(a)**_ or of the decision referred to in
paragraph _**9(b)**_ . The opinion shall be
supported by at least two of the three
conciliators.

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**Amendment 146**

**Proposal for a regulation**
**Article 18 – paragraph 11**

_Text proposed by the Commission_ _Amendment_

11. _**The**_ 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.

**Amendment 147**

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

11. _**The**_ 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 _**recommended**_
_**aggregate royalty rate, the**_ reasons for the
opinion on the aggregate royalty and the
underlying methodology. Any divergent
views _**and the reasons underlying them**_
shall be specified in an annex to the expert
opinion.

_Text proposed by the Commission_ _Amendment_

1. The competence centre shall create
an entry in the register for a standard for
which FRAND commitments have been
made within 60 days from the earliest of
the following events:

**Amendment 148**

**Proposal for a regulation**
**Article 20 – paragraph 5**

1. The competence centre shall create
an entry in the register for a standard _**or**_
_**part thereof**_ for which FRAND
commitments have been made within 60
days from the earliest of the following

events:

_Text proposed by the Commission_ _Amendment_

5. 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.

5. A SEP holder shall update the
information in the register _**, except for the**_
_**information provided in accordance with**_
_**Article 4(3), point (c),**_ and database to
reflect relevant changes in relation to its
registered SEP by notifying the
competence centre within 6 months from
the change occurring.

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**Amendment 149**

**Proposal for a regulation**
**Article 20 – paragraph 6**

_Text proposed by the Commission_ _Amendment_

6. 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).

**Amendment 150**

**Proposal for a regulation**
**Article 22 – paragraph 1**

6. 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
pursuant to Article 29(1).

_Text proposed by the Commission_ _Amendment_

1. A sample of SEP registrations _**shall**_
_**be checked annually for**_ completeness and

correctness.

**Amendment 151**

**Proposal for a regulation**
**Article 22 – paragraph 3**

1. _**The EUIPO shall annually check**_ a
sample of SEP registrations _**in order to**_
_**verify their**_ completeness and correctness.

_Text proposed by the Commission_ _Amendment_

3. 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.

3. 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 _**3**_ months.

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**Amendment 152**

**Proposal for a regulation**
**Article 22 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

4. If the SEP holder fails to provide the
correct and complete information, the
registration shall be suspended from the
register, until such time as the
incompleteness or inaccuracy is remedied.

**Amendment 153**

**Proposal for a regulation**
**Article 23 – paragraph 3**

4. If the SEP holder fails to provide the
correct and complete information, _**the**_
_**competence centre shall notify the SEP**_
_**holder about its failure to provide the**_
_**correct and complete information and**_
_**that, following a grace period of 1 month**_
_**during which the SEP holder could still**_
_**provide the required information, its**_
registration shall be suspended from the
register, until such time as the
incompleteness or inaccuracy is remedied.

_Text proposed by the Commission_ _Amendment_

3. 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.

3. The competence centre shall notify
the request _**made in accordance with**_
_**paragraph 2**_ to the SEP holder and invite
the SEP holder to _**request a correction of**_
the entry in the register or the information
submitted for the database, where relevant
within a time limit no less than _**3**_ months.

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**Amendment 154**

**Proposal for a regulation**
**Article 23 – paragraph 4 – introductory part**

_Text proposed by the Commission_ _Amendment_

4. 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:

**Amendment 155**

**Proposal for a regulation**
**Article 23 – paragraph 5**

4. The competence centre shall notify
the SEP holder and invite the SEP holder
to _**request a correction of**_ the entry in the
register or the information submitted for
the database, where relevant within a time
limit no less than _**3**_ 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:

_Text proposed by the Commission_ _Amendment_

5. 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.

5. 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 _**competence centre shall**_
_**notify the SEP holder about its failure to**_
_**provide the correct and complete**_
_**information and that, following a grace**_
_**period of 1 month during which the SEP**_
_**holder could still provide the required**_
_**information, the**_ registration shall be
suspended from the register, until such
time as the incompleteness or inaccuracy is
remedied.

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**Amendment 156**

**Proposal for a regulation**
**Article 23 – paragraph 8**

_Text proposed by the Commission_ _Amendment_

8. 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.

**Amendment 157**

**Proposal for a regulation**
**Article 24 – paragraph 1**

8. The competence centre _**shall**_ 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.

_Text proposed by the Commission_ _Amendment_

_**1.**_ _**A SEP that is not registered within**_
_**the time-limit set out in Article 20(3) may**_
_**not be enforced in relation to the**_
_**implementation of the standard for which**_
_**a registration is required in a competent**_
_**court of a Member State, from the time-**_
_**limit set out in Article 20(3) until its**_
_**registration in the register.**_

**Amendment 158**

**Proposal for a regulation**
**Article 24 – paragraph 2**

_**deleted**_

_Text proposed by the Commission_ _Amendment_

2. 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.

2. A SEP holder that has not registered
its SEPs within the time-limit set out in
Article 20(3) shall not be entitled to _**bring**_
_**a claim**_ 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.

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# ANNEX GIP.INST EN

**Amendment 159**

**Proposal for a regulation**
**Article 24 – paragraph 3**

_Text proposed by the Commission_ _Amendment_

3. _**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**_ .

**Amendment 160**

**Proposal for a regulation**
**Article 24 – paragraph 4**

3. _**Paragraph 1 is**_ without prejudice to
provisions included in contracts _**concluded**_
_**and applied before the entry into force of**_
_**this Regulation which set**_ a royalty for
patents _**that are or have been claimed to**_
_**be essential to a standard**_ .

_Text proposed by the Commission_ _Amendment_

4. _**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).

**Amendment 161**

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

4. _**Paragraph 1 of this Article applies**_
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).

_Text proposed by the Commission_ _Amendment_

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

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

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**Amendment 162**

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

_Text proposed by the Commission_ _Amendment_

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

**Amendment 163**

**Proposal for a regulation**
**Article 27 – paragraph 2**

(a) the requirements for evaluators or
conciliators, including a Code of Conduct _**,**_
_**including at least the criteria of Article**_
_**27(2a) of this Regulation**_ ;

_Text proposed by the Commission_ _Amendment_

2. 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.**_

**Amendment 164**

**Proposal for a regulation**
**Article 27 – paragraph 2 – point a (new)**

2. The competence centre shall
establish a roster of suitable candidates for

evaluators or conciliators _**and make sure**_

_**that:**_

_Text proposed by the Commission_ _Amendment_

_**(a)**_ _**there is no potential conflicts of**_
_**interest, so that the chosen evaluators and**_
_**conciliators are impartial and unbiased;**_

10566/24 LL/ec 84

# ANNEX GIP.INST EN

**Amendment 165**

**Proposal for a regulation**
**Article 27 – paragraph 2 – point b (new)**

_Text proposed by the Commission_ _Amendment_

_**(b)**_ _**every evaluator and conciliator**_
_**appointed to the roster has the necessary**_
_**qualification, experience and skills to**_
_**perform the required tasks effectively. In**_
_**particular, they shall have the necessary**_
_**qualifications, substantial experience in**_
_**the patent industry and dispute resolution,**_
_**a demonstrated understanding of FRAND**_
_**terms and conditions or a solid technical**_

_**background in relevant technology field.**_

**Amendment 166**

**Proposal for a regulation**
**Article 27 – paragraph 2 - subparagraph 1 a (new)**

_Text proposed by the Commission_ _Amendment_

_**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)**_ .

_**There shall be different rosters of**_
evaluators _**and**_ conciliators _**depending on**_
_**the technical area of their specialisation**_
_**or expertise**_ .

10566/24 LL/ec 85

# ANNEX GIP.INST EN

**Amendment 167**

**Proposal for a regulation**
**Article 28 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. 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

**Amendment 168**

**Proposal for a regulation**
**Article 29 – paragraph 1**

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

_Text proposed by the Commission_ _Amendment_

1. 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).

1. 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 _**, unless they**_
_**are a patent assertion entity or a**_
_**subsidiary, affiliate, or owned or directly**_
_**or indirectly controlled by another natural**_
_**or legal person that does not qualify as an**_
_**SME itself**_ . 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).

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# ANNEX GIP.INST EN

**Amendment 169**

**Proposal for a regulation**
**Article 29 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

4. 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.

**Amendment 170**

**Proposal for a regulation**
**Article 29 – paragraph 4 a (new)**

4. 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 _**unless**_
_**paragraph 4a applies**_ . 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.

_Text proposed by the Commission_ _Amendment_

_**4a.**_ _**If an evaluator has sufficient reason**_
_**to believe that a prior essentiality check**_
_**conducted under Article 8, point (b),**_
_**might be inaccurate, the evaluator shall**_
_**have the authority to review the result of**_
_**that check. If, after the review, the**_
_**evaluator concludes that the prior**_
_**essentiality check result was inaccurate,**_
_**this evaluator shall conduct a new**_

_**essentiality check for the specific SEP in**_
_**question.**_

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# ANNEX GIP.INST EN

**Amendment 171**

**Proposal for a regulation**
**Article 30 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. 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.

**Amendment 172**

**Proposal for a regulation**
**Article 30 – paragraph 3**

1. 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 _**and evidence**_ concerning the
essentiality of the selected SEPs.

_Text proposed by the Commission_ _Amendment_

3. 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.

**Amendment 173**

**Proposal for a regulation**
**Article 31 – paragraph 4**

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

_Text proposed by the Commission_ _Amendment_

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

4. The evaluator shall duly consider any
information provided by the SEP holder _**or**_
_**by stakeholders in accordance with the**_
_**procedure laid down in Article 30**_ .

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**Amendment 174**

**Proposal for a regulation**
**Article 32 – paragraph 3**

_Text proposed by the Commission_ _Amendment_

3. 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.

**Amendment 175**

**Proposal for a regulation**
**Article 32 – paragraph 5**

3. The peer evaluator shall duly
consider all the information submitted by
the SEP holder _**or stakeholders which**_

_**have provided observations or evidence in**_
_**accordance with the procedure laid down**_
_**in Article 30**_, 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.

_Text proposed by the Commission_ _Amendment_

5. 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.

5. The peer evaluator shall duly
consider the observations of the SEP

holder _**or the observations or evidence**_

_**provided by other stakeholders in**_
_**accordance with Article 30**_ 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.

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# ANNEX GIP.INST EN

**Amendment 176**

**Proposal for a regulation**
**Article 34 – paragraph 1 – subparagraph 1 a (new)**

_Text proposed by the Commission_ _Amendment_

_**The FRAND determination shall not**_

_**apply to existing licensing agreements**_
_**during their application term.**_

**Amendment 177**

**Proposal for a regulation**
**Article 34 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

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

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

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# ANNEX GIP.INST EN

**Amendment 178**

**Proposal for a regulation**
**Article 34 – paragraph 5**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 179**

**Proposal for a regulation**
**Article 36 – paragraph 1 – point d**

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

_Text proposed by the Commission_ _Amendment_

(d) the commercial name of the standard
and the name of the standard developing
organisation.

**Amendment 180**

**Proposal for a regulation**
**Article 36 – paragraph 1 – point f**

(d) the commercial name of the standard
and the name of the _**relevant**_ standard
developing organisation.

_Text proposed by the Commission_ _Amendment_

(f) references to any other FRAND
determination, if applicable.

**Amendment 181**

**Proposal for a regulation**
**Article 36 – paragraph 2 – introductory part**

(f) references to any other _**related**_
FRAND determination, if applicable.

_Text proposed by the Commission_ _Amendment_

2. 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:

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

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# ANNEX GIP.INST EN

**Amendment 182**

**Proposal for a regulation**
**Article 37 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. 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.

**Amendment 183**

**Proposal for a regulation**
**Article 38 – paragraph 1**

1. 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(3)(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.

_Text proposed by the Commission_ _Amendment_

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

**Amendment 184**

**Proposal for a regulation**
**Article 38 – paragraph 2**

1. The competence centre shall notify
the request to the responding party within 7
days _**, including the information submitted**_
_**pursuant to Article 36,**_ and shall inform
the requesting party thereof.

_Text proposed by the Commission_ _Amendment_

2. The responding party shall notify the
competence centre within 15 days from the
receipt of the notification of the request for
FRAND determination from the
competence centre in accordance with
paragraph (1). The response shall indicate
whether the responding party agrees to the
FRAND determination _**and whether it**_

_**commits to comply with its outcome**_ .

2. The responding party shall notify the
competence centre within 15 days from the
receipt of the notification of the request for
FRAND determination from the
competence centre in accordance with
paragraph (1). The response shall indicate
whether the responding party agrees to the
FRAND determination _**in case of**_
_**disagreement, include the reasons for**_
_**declining to participate**_ .

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# ANNEX GIP.INST EN

**Amendment 185**

**Proposal for a regulation**
**Article 38 – paragraph 3 – introductory part**

_Text proposed by the Commission_ _Amendment_

3. Where the responding party does not
reply within the time limit laid down in
paragraph (2) or informs the competence
centre of its decision not to participate in
the FRAND determination, _**or not to**_
_**commit to comply with the outcome,**_ the
following shall apply:

**Amendment 186**

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

3. Where the responding party does not
reply within the time limit laid down in
paragraph (2) or informs the competence
centre of its decision not to participate in
the FRAND determination, the following
shall apply:

_Text proposed by the Commission_ _Amendment_

(a) the competence centre shall notify
the requesting party thereof and invite it to
indicate within seven days whether it
requests the continuation of the FRAND
determination _**and whether it commits to**_

_**comply with the outcome of the FRAND**_
_**determination**_ ;

**Amendment 187**

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

(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;

_Text proposed by the Commission_ _Amendment_

(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.

(b) where the requesting 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 the
requesting party in relation to the same
subject matter.

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**Amendment 188**

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

_Text proposed by the Commission_ _Amendment_

4. Where the responding party agrees to
the FRAND determination _**and commits to**_

_**comply with its outcome pursuant to**_
_**paragraph (2), including where such**_
_**commitment is contingent upon the**_
_**commitment of**_ the requesting party _**to**_
_**comply with the outcome of the FRAND**_
_**determination, the following shall apply:**_

**Amendment 189**

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

4. Where the responding party agrees to
the FRAND determination _**the competence**_
_**centre shall notify**_ the requesting party
_**thereof.**_

_Text proposed by the Commission_ _Amendment_

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

_**and the outcome shall be binding for both**_
_**parties;**_

_**deleted**_

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# ANNEX GIP.INST EN

**Amendment 190**

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

_Text proposed by the Commission_ _Amendment_

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

**Amendment 191**

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

_**deleted**_

_Text proposed by the Commission_ _Amendment_

_**(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;**_

**Amendment 192**

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

_**deleted**_

_Text proposed by the Commission_ _Amendment_

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

_**deleted**_

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# ANNEX GIP.INST EN

**Amendment 193**

**Proposal for a regulation**
**Article 38 – paragraph 4 a (new)**

_Text proposed by the Commission_ _Amendment_

_**4a.**_ _**Each party may, at any time during**_
_**the FRAND determination process,**_
_**declare to commit to comply with its**_
_**outcome. The declaring party may make**_
_**its commitment to comply subject to the**_
_**other party's commitment to the outcome.**_
_**This shall not terminate the FRAND**_

_**determination process.**_

**Amendment 194**

**Proposal for a regulation**
**Article 38 – paragraph 5**

_Text proposed by the Commission_ _Amendment_

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

_**deleted**_

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# ANNEX GIP.INST EN

**Amendment 195**

**Proposal for a regulation**
**Article 38 – paragraph 6**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 196**

**Proposal for a regulation**
**Article 39 – title**

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

_Text proposed by the Commission_ _Amendment_

Selection of conciliators Selection _**of a panel**_ of conciliators

**Amendment 197**

**Proposal for a regulation**
**Article 39 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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

1. Following the reply to the FRAND
determination by the responding party in
accordance with Article 38(2), _**the**_
_**requesting and responding parties**_ shall
_**each appoint one conciliator**_ from the
roster of conciliators referred to Article
27(2) _**to the panel of conciliators. The**_
_**third**_ conciliator _**shall be appointed by the**_
_**competence centre from the roster of**_
_**conciliators referred to in Article 27(2)**_ .

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**Amendment 198**

**Proposal for a regulation**
**Article 39 – paragraph 2**

_Text proposed by the Commission_ _Amendment_

_**2.**_ _**If the parties do not agree on a**_
_**conciliator, the competence centre shall**_
_**select one candidate from the roster of**_
_**conciliators referred to in Article 27(2).**_

**Amendment 199**

**Proposal for a regulation**
**Article 40 – title**

_**deleted**_

_Text proposed by the Commission_ _Amendment_

_**Appointment of conciliators**_

**Amendment 200**

**Proposal for a regulation**
**Article 40 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. 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.

**Amendment 201**

**Proposal for a regulation**
**Article 40 – paragraph 2**

1. The selected _**candidates**_ shall
communicate to the competence centre the
acceptance to take up the task of a
conciliator for the FRAND determination,
which shall notify the communication of
acceptance to the parties.

_Text proposed by the Commission_ _Amendment_

2. 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**_ .

2. The day following the notification of
the acceptance to the parties, the _**panel of**_
_**conciliators**_ is appointed, and the
competence centre shall refer the case to
_**the panel of conciliators**_ .

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# ANNEX GIP.INST EN

**Amendment 202**

**Proposal for a regulation**
**Article 42 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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.

**Amendment 203**

**Proposal for a regulation**
**Article 42 – paragraph 2**

1. After the case is referred to the _**panel**_
_**of conciliators**_ in accordance with Article
40(2), _**it**_ shall examine whether the request
contains the information required under
Article 36 in accordance with the Rules of
procedure.

_Text proposed by the Commission_ _Amendment_

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.

**Amendment 204**

**Proposal for a regulation**
**Article 43 – paragraph 1**

2. _**The panel of conciliators**_ shall
communicate to the parties or the party
requesting the continuation of the FRAND
determination the conduct as well as the
schedule of procedure.

_Text proposed by the Commission_ _Amendment_

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.

The _**panel of conciliators**_ shall invite each
party to file written submissions setting out
its arguments concerning the determination
of the applicable FRAND terms and
conditions, including supporting
documentation and evidence, and set
appropriate time limits.

10566/24 LL/ec 99

# ANNEX GIP.INST EN

**Amendment 205**

**Proposal for a regulation**
**Article 44 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 206**

**Proposal for a regulation**
**Article 44 – paragraph 2**

1. A party may submit an objection
stating that the _**panel of conciliators**_ is
unable to make a FRAND determination
on legal grounds, such as a previous
binding FRAND determination or
agreement between the parties, _**at any time**_ .
The other party shall be given opportunity
to submit its observations.

_Text proposed by the Commission_ _Amendment_

2. The _**conciliator**_ shall decide on the
objection and either reject it as unfounded
before considering the merits of the case or
join it to the examination of the merits of
the FRAND determination. If the
_**conciliator**_ overrules the objection or joins
it to the examination of the merits of the

determination of FRAND terms and

conditions, it shall resume consideration of
the determination of FRAND terms and

conditions.

**Amendment 207**

**Proposal for a regulation**
**Article 44 – paragraph 3**

2. The _**panel of conciliators**_ shall
decide on the objection and either reject it
as unfounded before considering the merits
of the case or join it to the examination of
the merits of the FRAND determination. If
the _**panel of conciliators**_ overrules the
objection or joins it to the examination of
the merits of the determination of FRAND

terms and conditions, it shall resume
consideration of the determination of

FRAND terms and conditions.

_Text proposed by the Commission_ _Amendment_

3. 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.

3. If the _**panel of conciliators**_ decides
that the objection is founded, it shall
terminate the FRAND determination and
shall draw up a report stating the reasons of
the decision.

10566/24 LL/ec 100

# ANNEX GIP.INST EN

**Amendment 208**

**Proposal for a regulation**
**Article 45 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. The _**conciliator**_ shall assist the
parties in an independent and impartial
manner in their endeavour to reach a

determination of FRAND terms and

conditions.

**Amendment 209**

**Proposal for a regulation**
**Article 45 – paragraph 2**

1. The _**panel of conciliators**_ shall assist
the parties in an independent and impartial
manner in their endeavour to reach a

determination of FRAND terms and

conditions.

_Text proposed by the Commission_ _Amendment_

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

**Amendment 210**

**Proposal for a regulation**
**Article 45 – paragraph 3**

2. The _**panel of conciliators**_ may invite
the parties or the party requesting the
continuation of the FRAND determination
to meet with _**it**_ or may communicate with _**it**_
orally or in writing.

_Text proposed by the Commission_ _Amendment_

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

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

10566/24 LL/ec 101

# ANNEX GIP.INST EN

**Amendment 211**

**Proposal for a regulation**
**Article 45 – paragraph 5**

_Text proposed by the Commission_ _Amendment_

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

determination.

**Amendment 212**

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

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

determination.

_Text proposed by the Commission_ _Amendment_

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

**Amendment 213**

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

(a) fails to comply with _**Article 45(3) or**_
any request of the _**panel of conciliators**_
Rules of procedure or schedule of
procedure referred to in Article 42(2), _**or**_

_Text proposed by the Commission_ _Amendment_

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

**Amendment 214**

**Proposal for a regulation**
**Article 46 – paragraph 1 – subparagraph 1**

_**deleted**_

_Text proposed by the Commission_ _Amendment_

the _**conciliator**_ shall inform both parties
thereof.

the _**panel of conciliators**_ shall inform both
parties thereof.

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# ANNEX GIP.INST EN

**Amendment 215**

**Proposal for a regulation**
**Article 46 – paragraph 2 – introductory part**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 216**

**Proposal for a regulation**
**Article 46 – paragraph 3**

2. Having received the notification of
the _**panel of conciliators**_, the complying
party may ask the _**panel of conciliators**_ to
take one of the following actions:

_Text proposed by the Commission_ _Amendment_

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.

**Amendment 217**

**Proposal for a regulation**
**Article 47 – paragraph 2**

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

_Text proposed by the Commission_ _Amendment_

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

2. Where a parallel proceeding has been
initiated before or during the FRAND
determination by a party, the _**panel of**_
_**conciliators**_, or where _**it**_ has not been
appointed, the competence centre, shall
terminate the FRAND determination upon
the request of _**the**_ other party.

10566/24 LL/ec 103

# ANNEX GIP.INST EN

**Amendment 218**

**Proposal for a regulation**
**Article 48 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. Without prejudice to the protection
of confidentiality in accordance with
Article 54(3) at any time during the
FRAND determination, at the request of a
party or on its own motion, the _**conciliator**_
may request the production of documents
or other evidence.

**Amendment 219**

**Proposal for a regulation**
**Article 48 – paragraph 2**

1. Without prejudice to the protection
of confidentiality in accordance with
Article 54(3) at any time during the
FRAND determination, at the request of a
party or on its own motion, the _**panel of**_
_**conciliators**_ may request the production of
documents or other evidence.

_Text proposed by the Commission_ _Amendment_

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.

**Amendment 220**

**Proposal for a regulation**
**Article 49 – paragraph 1**

2. The _**panel of conciliators**_ may
examine publicly available information and
the competence centre’s register _**, database**_
and confidential and non-confidential
reports of other FRAND determinations,
_**aggregate royalty determinations and**_
_**results of essentiality checks,**_ as well as
_**other**_ non-confidential documents and
information produced by or submitted to
the competence centre.

_Text proposed by the Commission_ _Amendment_

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.

The _**panel of conciliators**_ may hear
witnesses and experts requested by either
party provided that the evidence is
necessary for the FRAND determination
and that there is time to consider such

evidence.

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# ANNEX GIP.INST EN

**Amendment 221**

**Proposal for a regulation**
**Article 50 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. 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

**Amendment 222**

**Proposal for a regulation**
**Article 50 – paragraph 3**

1. At any time during the FRAND
determination, the _**panel of conciliators**_ or
a party on its own motion or by invitation
of the _**panel of conciliators**_ may submit
proposals for a determination of FRAND
terms and conditions _**.**_

_Text proposed by the Commission_ _Amendment_

3. When submitting suggestions for
FRAND terms and conditions, the
_**conciliator**_ shall take into account the
impact of the determination FRAND terms
and conditions on the value chain and on

the incentives to innovation of both the

SEP holder and the stakeholders in the

relevant value chain. To that end, the
_**conciliator**_ may rely on the expert opinion
referred to in Article 18 or, in case of
absence of such an opinion request
additional information and hear experts or
stakeholders.

3. When submitting suggestions for
FRAND terms and conditions, the _**panel of**_
_**conciliators**_ shall take into account the
impact of the determination FRAND terms
and conditions on the value chain and on

the incentives to innovation of both the

SEP holder and the stakeholders in the
relevant value chain. To that end, the _**panel**_
_**of conciliators**_ may rely on the expert
opinion referred to in Article 18 or, in case
of absence of such an opinion request
additional information and hear experts or
stakeholders.

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# ANNEX GIP.INST EN

**Amendment 223**

**Proposal for a regulation**
**Article 51 – title**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 224**

**Proposal for a regulation**
**Article 51 – paragraph 1**

Recommendation of a determination of
FRAND terms and conditions by the _**panel**_
_**of conciliators**_

_Text proposed by the Commission_ _Amendment_

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.

**Amendment 225**

**Proposal for a regulation**
**Article 52 – paragraph 1**

The _**panel of conciliators**_ shall notify the
parties a written recommendation of a
determination of FRAND terms and

conditions at the latest 5 months before the

time limit referred to in Article 37.

_Text proposed by the Commission_ _Amendment_

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**_ .

Following the notification of the written
recommendation of FRAND terms and
conditions by the _**panel of conciliators**_,
either party shall submit a detailed and
reasoned proposal for a determination of
FRAND terms and conditions. If a party
has already submitted a proposal for the
determination of FRAND terms and

conditions, revised versions shall be
submitted, if necessary, taking into account
the recommendation of the _**panel of**_
_**conciliators**_ .

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# ANNEX GIP.INST EN

**Amendment 226**

**Proposal for a regulation**
**Article 53 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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.

**Amendment 227**

**Proposal for a regulation**
**Article 54 – paragraph 1**

If the _**panel of conciliators**_ considers it
necessary or if a party so requests, an oral
hearing shall be held within 20 days after
the submission of reasoned proposals for
determination of FRAND terms and

conditions.

_Text proposed by the Commission_ _Amendment_

1. When the _**conciliator**_ receives
information for the purposes of FRAND
determination from a party, it shall disclose
it to the other party so that the other party
has the opportunity to present any
explanation.

**Amendment 228**

**Proposal for a regulation**
**Article 54 – paragraph 2**

1. When the _**panel of conciliators**_
receives information for the purposes of
FRAND determination from a party, it
shall disclose it to the other party so that
the other party has the opportunity to
present any explanation.

_Text proposed by the Commission_ _Amendment_

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

2. A party may request the _**panel of**_
_**conciliators**_ that specific information in a
submitted document is kept confidential.

10566/24 LL/ec 107

# ANNEX GIP.INST EN

**Amendment 229**

**Proposal for a regulation**
**Article 54 – paragraph 3**

_Text proposed by the Commission_ _Amendment_

3. 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 nonconfidential version of the information

submitted in confidence in sufficient detail
to permit a reasonable understanding of the
substance of the information submitted in

confidence. This non-confidential version
shall be disclosed to the other party.

**Amendment 230**

**Proposal for a regulation**
**Article 55 – paragraph 1**

3. When a party requests the
information in a document it had submitted
to be kept confidential, the _**panel of**_
_**conciliators**_ shall not disclose that
information 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.

_Text proposed by the Commission_ _Amendment_

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

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

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# ANNEX GIP.INST EN

**Amendment 231**

**Proposal for a regulation**
**Article 55 – paragraph 2**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 232**

**Proposal for a regulation**
**Article 56 – paragraph 1 – point b**

2. Either party may submit observations
to the proposal and suggest amendments
_**within a deadline set**_ by the _**panel of**_
_**conciliators**_, who may reformulate its
proposal to take into account the
observations submitted by the parties and
shall _**promptly**_ inform the parties or the
party requesting the continuation of the
FRAND determination, as applicable, of
such reformulation.

_Text proposed by the Commission_ _Amendment_

(b) 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;

**Amendment 233**

**Proposal for a regulation**
**Article 56 – paragraph 1 – point c**

(b) a written declaration is signed by the
parties accepting the reasoned proposal for
a determination of FRAND terms and
conditions by the _**panel of conciliators**_
referred to in Article 55;

_Text proposed by the Commission_ _Amendment_

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

(c) a written declaration is made by a
party not to accept the reasoned proposal of
a determination of FRAND terms and
conditions by the _**panel of conciliators**_
referred to in Article 55;

10566/24 LL/ec 109

# ANNEX GIP.INST EN

**Amendment 234**

**Proposal for a regulation**
**Article 56 – paragraph 1 – point d**

_Text proposed by the Commission_ _Amendment_

(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.

**Amendment 235**

**Proposal for a regulation**
**Article 56 – paragraph 4**

(d) a party has not submitted a reply to
the reasoned proposal of a determination of
FRAND terms and conditions by the _**panel**_
_**of conciliators**_ referred to in Article 55.

_Text proposed by the Commission_ _Amendment_

4. 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)**_ .

**Amendment 236**

**Proposal for a regulation**
**Article 57 – paragraph 1**

4. 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.

_Text proposed by the Commission_ _Amendment_

1. 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).

1. The _**panel of conciliators**_ shall
provide the parties with a written report
following the termination of the FRAND
determination in cases listed in Article
56(1), point (c) and Article 56(1), point (d).

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# ANNEX GIP.INST EN

**Amendment 237**

**Proposal for a regulation**
**Article 57 – paragraph 2 -– point d**

_Text proposed by the Commission_ _Amendment_

(d) a non-confidential methodology and
the assessment of the determination of
FRAND terms and conditions by the
_**conciliator**_ **.**

**Amendment 238**

**Proposal for a regulation**
**Article 58 – paragraph 1**

(d) a non-confidential methodology and
the assessment of the determination of
FRAND terms and conditions by the _**panel**_
_**of conciliators**_ **.**

_Text proposed by the Commission_ _Amendment_

1. 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.

1. Except the methodology and the
assessment of the FRAND determination
by the _**panel of conciliators**_ 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.

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# ANNEX GIP.INST EN

**Amendment 239**

**Proposal for a regulation**
**Article 60 – paragraph 1 a (new)**

_Text proposed by the Commission_ _Amendment_

_**1a.**_ _**The period specified in days ends on**_
_**the last day, a period marked in weeks**_
_**ends at the end of the day in the last week,**_
_**a period specified in months ends on the**_
_**expiry of the day corresponding to the**_
_**initial day of the period, and if there was**_
_**no such day in the last month - then on**_
_**the last day of that month, a period**_
_**marked in years ends on the expiry of the**_
_**day corresponding to the initial day of a**_
_**given period, and if there was no such**_
_**day, the end date will be the last day of**_
_**that month.**_

**Amendment 240**

**Proposal for a regulation**
**Article 61 – title**

_Text proposed by the Commission_ _Amendment_

_**Training, advice and support**_ _**SEP Licensing Assistance Hub for SMEs**_
_**and start ups**_

**Amendment 241**

**Proposal for a regulation**
**Article 61 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

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

1. The competence centre shall _**set up**_
_**and manage a SEP Licensing Assistance**_
_**Hub for SMEs and start-ups which shall**_
_**help the SMEs and start-ups with**_
_**following tasks**_ free of charge _**:**_

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# ANNEX GIP.INST EN

**Amendment 242**

**Proposal for a regulation**
**Article 61 – paragraph 1 – point a (new)**

_Text proposed by the Commission_ _Amendment_

_**(a)**_ _**identification of which SEPs might**_
_**be relevant to their product or service,**_
_**possible licensors and patent pools, in the**_
_**event that the SME or the start-up is a**_
_**SEP implementer;**_

**Amendment 243**

**Proposal for a regulation**
**Article 61 – paragraph 1 – point b (new)**

_Text proposed by the Commission_ _Amendment_

_**(b)**_ _**identification of possible licensees**_
_**and, with the help of the European**_
_**Observatory on infringements of**_
_**intellectual property rights, advise them**_
_**on how to best enforce their SEP rights**_
_**on European and global level, in the event**_
_**that the SME or the start-up is a SEP**_
_**holder;**_

**Amendment 244**

**Proposal for a regulation**
**Article 61 – paragraph 1 – point c (new)**

_Text proposed by the Commission_ _Amendment_

_**(c)**_ _**offer training and support on SEP**_
_**related matters.**_

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# ANNEX GIP.INST EN

**Amendment 245**

**Proposal for a regulation**
**Article 61 – paragraph 1 – subparagraph 1 a (new)**

_Text proposed by the Commission_ _Amendment_

_**The competence centre shall not be held**_
_**liable for any help provided to SMEs and**_
_**start-ups under this paragraph. When**_
_**performing the tasks referred to in this**_
_**paragraph, the competence centre may**_
_**work in close cooperation with national**_
_**patent offices and governmental schemes**_
_**that support SMEs.**_

**Amendment 246**

**Proposal for a regulation**
**Article 61 – paragraph 1 a (new)**

_Text proposed by the Commission_ _Amendment_

_**1a.**_ _**The competence centre shall, on a**_
_**regular basis, proactively seek input from**_
_**SMEs and start-ups on what training and**_
_**support would be most helpful.**_

**Amendment 247**

**Proposal for a regulation**
**Article 61 – paragraph 2**

_Text proposed by the Commission_ _Amendment_

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

matters.

2. The competence centre may
commission studies, if it considers it
necessary, to assist _**SMEs**_ on SEP related
matters. _**Such studies may include**_
_**analysis, based on information provided**_
_**by SEP holders and implementers**_
_**regarding licenses entered into, royalties**_
_**paid or collected, and products sold for**_
_**IoT applications, and the competence**_
_**centre may provide estimates of licensing**_
_**costs for such applications to SMEs.**_

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# ANNEX GIP.INST EN

**Amendment 248**

**Proposal for a regulation**
**Article 61 – paragraph 3**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 249**

**Proposal for a regulation**
**Article 61 – paragraph 3 a (new)**

3. The costs of the services referred to
in paragraph (1) and paragraph (2) shall be
borne by the EUIPO _**and the EUIPO shall**_
_**ensure that the services are sufficiently**_
_**funded and resourced**_ .

_Text proposed by the Commission_ _Amendment_

_**3a.**_ _**Paragraphs 1 and 2 shall not apply**_
_**to patent assertion entities or to SMEs,**_
_**which are a subsidiary, affiliate, or owned**_
_**or directly or indirectly controlled by**_
_**another natural or legal person that is not**_
_**a SME itself.**_

**Amendment 250**

**Proposal for a regulation**
**Article 62 – paragraph 2**

_Text proposed by the Commission_ _Amendment_

2. _**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.

2. _**When**_ a SEP holder, or concludes a
SEP licence that includes more favourable
terms and conditions, _**than those offered to**_
_**companies that are not an SME**_ 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.

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**Amendment 251**

**Proposal for a regulation**
**Article 62 – paragraph 3**

_Text proposed by the Commission_ _Amendment_

3. 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).

**Amendment 252**

**Proposal for a regulation**
**Article 62 – paragraph 3 a (new)**

3. SEP holders shall also consider
discounts _**, spreading payments into**_
_**interest-free instalments**_ 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).

_Text proposed by the Commission_ _Amendment_

_**3a.**_ _**Any benefits granted to SMEs under**_
_**this Regulation may be withheld or**_
_**withdrawn in cases of circumvention or**_
_**misuse.**_

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**Amendment 253**

**Proposal for a regulation**
**Article 63 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

4. 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.

**Amendment 254**

**Proposal for a regulation**
**Article 65 a (new)**

4. The level of the fees shall be

reasonable and _**limited**_ to the costs of the

services. It shall take into account the

situation of micro, small and medium-sized
enterprises.

_Text proposed by the Commission_ _Amendment_

_**Article 65a**_

_**Reasoned request to the Commission**_

_**A SEP holder or a SEP implementer may**_
_**submit a reasoned request to the**_
_**Commission to determine whether:**_

_**(a)**_ _**the SEP licensing negotiations on**_
_**FRAND terms and conditions do not give**_
_**rise to significant difficulties or**_
_**inefficiencies affecting the functioning of**_
_**the internal market as regards identified**_
_**implementations of certain standards or**_
_**parts thereof within 1 month of the**_
_**publication of the standard by the**_
_**Standard Development Organisation;**_

_**(b)**_ _**the functioning of the internal**_
_**market is severely distorted due to**_
_**significant difficulties or inefficiencies in**_
_**the licensing of SEPs for particular**_
_**existing implementations of standards or**_
_**parts thereof within 12 months of the**_
_**entry into force of this Regulation.**_

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**Amendment 255**

**Proposal for a regulation**
**Article 65 b (new)**

_Text proposed by the Commission_ _Amendment_

_**Article 65b**_

_**Delegated acts with respect to new**_

_**standards**_

_**1.**_ _**Within 4 months of the receipt of**_
_**the request referred to in paragraph 1, the**_
_**Commission is empowered to adopt**_
_**delegated acts in accordance with Article**_
_**67 and after an appropriate consultation**_
_**process including all relevant**_
_**stakeholders and to establish a list of**_
_**implementations, standards or parts**_
_**thereof, where SEP licensing negotiations**_
_**on FRAND terms do not give rise to**_
_**significant difficulties or inefficiencies**_
_**affecting the functioning of the internal**_
_**market.**_

_**2.**_ _**The Commission shall review the**_

_**list referred to in paragraph 1 once a year**_
_**in order to determine if it needs to be**_
_**updated.**_

_**3.**_ _**The procedure under this Article**_
_**shall not affect the time limits set out in**_
_**Articles 17 and 18**_ .

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**Amendment 256**

**Proposal for a regulation**
**Article 65 c (new)**

_Text proposed by the Commission_ _Amendment_

_**Article 65c**_

_**Delegated acts with respect to existing**_

_**standards**_

_**1.**_ _**The Commission shall conduct**_

_**appropriate consultations including**_
_**relevant stakeholders.**_

_**2.**_ _**After considering all evidence and**_
_**expert opinions, the Commission is**_
_**empowered to adopt a delegated act in**_
_**accordance with Article 67 to establish a**_

_**list determining which of the existing**_
_**implementations of standards or parts**_
_**thereof can be notified in accordance with**_
_**Article 66(1) or (2). By means of that**_
_**delegated act, the Commission shall also**_
_**determine which procedures, notification**_
_**and publication requirements set out in**_
_**this Regulation apply to those existing**_
_**standards, parts thereof or relevant**_
_**implementations. The delegated act shall**_
_**be adopted by ... [OJ: please insert the**_
_**date 18 months from entry into force of**_
_**this Regulation]. The Commission shall**_
_**check once a year if the list needs to be**_
_**updated.**_

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**Amendment 257**

**Proposal for a regulation**
**Article 66 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. Until [OJ: please insert the date = 28
months from the entry into force of this
regulation] holders of SEPs essential to a
standard published before the entry into
force of this 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.

1. Until … [OJ: please insert the date =
28 months from the entry into force of this
Regulation] holders of SEPs essential to a
standard published before the entry into
force of this Regulation ( _**‘**_ existing
standards _**’**_ ), for which FRAND
commitments have _**or have not**_ 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 _**Article 65c**_ . The
procedures, notification and publication
requirements set out in this Regulation
apply mutatis mutandis.

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**Amendment 258**

**Proposal for a regulation**
**Article 66 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

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

**Amendment 259**

**Proposal for a regulation**
**Article 67 – paragraph 2**

_**deleted**_

_Text proposed by the Commission_ _Amendment_

2. 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.

2. The power to adopt a delegated act
referred to in Articles 4(5) _**, 65b and 65c**_
shall be conferred on the Commission for
an indeterminate period of time from the
date of entry into force of this Regulation.

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**Amendment 260**

**Proposal for a regulation**
**Article 67 – paragraph 3**

_Text proposed by the Commission_ _Amendment_

3. 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.

**Amendment 261**

**Proposal for a regulation**
**Article 67 – paragraph 6**

3. The delegation of power referred to
in Articles _**4(5), 65b and 65c**_ 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.

_Text proposed by the Commission_ _Amendment_

6. 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.

6. A delegated act adopted pursuant to
Articles 4(5) _**, 65b and 65c**_ 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.

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**Amendment 262**

**Proposal for a regulation**
**Article 70 – paragraph 1**

_Text proposed by the Commission_ _Amendment_

1. 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.**_

**Amendment 263**

**Proposal for a regulation**
**Article 70 – paragraph 1 – point a (new)**

1. By … [OJ: please insert the date = 5
years from entry into force of this
Regulation] _**, and every three years**_
_**thereafter,**_ the Commission shall evaluate
the _**implementation of this Regulation.**_
_**The evaluation shall assess the operation**_
_**of this Regulation, in particular:**_

_Text proposed by the Commission_ _Amendment_

_**(a)**_ _**the impact, effectiveness and**_
_**efficiency of the competence centre and**_
_**its working methods;**_

**Amendment 264**

**Proposal for a regulation**
**Article 70 – paragraph 1 – point b (new)**

_Text proposed by the Commission_ _Amendment_

_**(b)**_ _**the effectiveness and efficiency of**_
_**the SEP registration and the essentiality**_
_**check system; and**_

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**Amendment 265**

**Proposal for a regulation**
**Article 70 – paragraph 1 – point c (new)**

_Text proposed by the Commission_ _Amendment_

_**(c)**_ _**the impact that the essentiality**_
_**check system, the aggregate royalties**_
_**determination and the FRAND**_

_**determination system have, in particular**_
_**on the competitiveness of the Union SEP**_
_**holders on a global level and on**_
_**innovation in the Union.**_

**Amendment 266**

**Proposal for a regulation**
**Article 70 – paragraph 2**

_Text proposed by the Commission_ _Amendment_

_**2.**_ _**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.**_

**Amendment 267**

**Proposal for a regulation**
**Article 70 – paragraph 3**

_**deleted**_

_Text proposed by the Commission_ _Amendment_

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

3. When preparing the evaluation
reports referred to in _**paragraph**_ _**1**_, the
Commission shall consult the EUIPO and

stakeholders.

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**Amendment 268**

**Proposal for a regulation**
**Article 70 – paragraph 4**

_Text proposed by the Commission_ _Amendment_

4. 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.

4. The Commission shall submit the
evaluation reports referred to in _**paragraph**_
_**1,**_ 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. _**The**_
_**evaluation report referred to in paragraph**_
_**1 shall be accompanied, where**_
_**appropriate, by a legislative proposal.**_

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