The European Commission has updated the web page for its new policy initiative relating to standard-essential patents (SEPs). A few months later than originally planned (which is not unusual), the Commission is now accepting feedback until May 9, 2022.
[Update] The questionnaire can be accessed via this webpage. [/Update]
The web page still keeps all options open with respect to whether there will be a legislative initiative such as an EU directive, a set of mere recommendations, or both. But a five-page PDF document is available for download. That document describes the "likely type of initiative" as a "[l]egislative initiative, combed with non-legislative actions." And the section on the political context indicates an inclination to expand the scope of the "acquis": the fields of law addressed by the EU:
"EU patent law is fairly limited and fragmented. EU patent law therefore needs to be recalibrated to boost the resilience of our patent system and support the EU’s twin transition (digital and green). The imminent launch of the unitary patent system also makes this the perfect time to enhance EU patent law and facilitate access to critical technologies. The Commission will therefore develop a coherent and balanced package comprising three patent-related proposals. These proposals, announced in the IP action plan, will cover supplementary protection certificates, compulsory licensing and standard-essential patents (‘SEPs’)."
Interestingly, compulsory licensing and SEPs are closely related fields of policy-making. As for the unitary patent system, with the Unified Patent Court commencing its operation soon, the UPC judges will not be bound by a mere policy paper, but would have to respect an EU directive. Given the UPC's narrow focus on patent law (as opposed to courts that normally have jurisdiction over all fields of law, including contract and competition law), it's possible that certain SEP-related defense strategies would not even work in the UPC. The Commission doesn't voice that concern in the "Call for Evidence" document, but that doesn't mean the Commission isn't aware of a potential vacuum concerning SEP enforcement and other cases involving a compulsory-licensing defense.
A lot of what the "Call of Evidence" document says is incontrovertible, such as the fact that "[t]he numbe rof declared SEPs continues to increase." I just struggle with one sentence:
"Since infringement claims are typically met with counterclaims that argue the patent is not valid, SEP holders often enforce their patents separately in each territory – a burdensome and costly exercise, especially for start-ups and SMEs."
First, the enforcement of SEPs on a country-by-country basis will be much less of a problem once the UPC is in operation. Second--and this is an even more important point: how many "start-ups and SEMs" do you really find at the standard-setting table?
The Commission invites a wide variety of parties to state their views: "SEP holders, SEP implementers, patent attorneys, legal practitioners, academics, patent-pool administrators, industry associations, start-ups, SMEs, SDOs, consultants, policy makers, and any other stakeholders that have experience with SEPs."
I am not going to participate in that consultation, but I will follow the process with great interest and comment on what others communicate to the Commission.
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