Saturday, October 7, 2023

European Parliament rapporteur proposes further deterioration and radicalization of EU SEP bill, fails to understand issues and to demonstrate professionalism

Unlike those who engage in lobbying, I don't have to mince words when commenting on what's going on in the EU with respect to the proposed regulation on standard-essential patents (SEPs). Among other things, I've saidthat the EU SEP Reg does reinforce my belief that the EU--an economic policy failure, plain and simple--is on the wrong track in many ways. I'm currently moving to a far better-run country that is not an EU member and most likely won't join in my lifetime.

The European Commission's Directorate-General for the Internal Market (DG GROW) has already embarrassed itself with the proposal and with the partly absurd ways in which it has attempted to justify it. While there is a silver lining in the form of a counterproposal by the rapporteur of the EU Parliament's international trade committee (INTA), I've now seen the draft report by the lead committee's (legal affairs, JURI) and therefore the Parliament's rapporteur--and it's an unmitigated disaster.

As I mentioned in the previous post (which I just linked to), the EP/JURI rapporteur on the SEP Reg, Marion Walsmann, started her parliamentary career as an active supporter of East Germany's antidemocratic regime. I'll talk about that some more on another occasion, but based on what I've researched, her party--which was part of the "National Front" bloc led by the Socialist Unity Party of Germany--almost 100% consistently voted in favor of every single proposal by the ruling communist party until the Fall of the Wall (the only significant exception was in 1972, at which point Mrs. Walsmann was a child). If that is true, then she has a consistent voting record of siding each and every time with an oppressive regime that despised democracy and violated human rights--and was rewarded by the regime for contributing to some faux pluralism. One of the most corrupt actions in German history was to merge those bloc parties into West German parties, all of which seized the opportunity to clear their financial debt, except for the Greens, which didn't have a formal sister party in the GDR anyway.

Nowadays there are no more bloc parties, but there's a phenomenon called astroturfing that is not entirely dissimilar. In an annex that lists entities from whom Mrs. Walsmann received input, ACT | The App(le) Association" is also found.

There are some funny typos in that annex ("Philipps" instead of "Philips" and "Xiami" instead of "Xiaomi") and a fundamental error concerning the lobbying entity of her home country's automotive industry: as the long-form name for VDA, the annex states "Verband Deutsche Automobilhersteller", which is not only grammatically incorrect (an "r" at the end of the second word is missing) but simply not the name of the organization. The actual name is "Verband der deutschen Automobilindustrie." The difference is that the former refers to "automakers" while the latter also includes suppliers.

Those are not the only typos and errors. For instance, she espouses amendments to Article 9 of the proposed regulation that refer to determinations "per user case" while the correct term (which is used in many other instances in the same document) is "use case". Also, the German-language "explanatory statement" uses an inconsistent spelling for the German word for "essential": sometimes with a "t", some other times with a "z". And then there's an odd passage that says implementers can hardly find out "whether a standard is actually essential." She must have meant whether a SEP is actually essential to a standard. Then there are grammatical errors in a sentence about applications to which SEPs are relevant: the list of examples starts with the correct grammatical case ("dem Internet der Dinge"), but then switches to the wrong one ("vernetze Fahrzeuge" (which means "connected vehicles" and where a "t" is missing from the first word) and "intelligente Städte".

Why are those typos and other errors worth mentioning? It's just striking that DG GROW and its philosophically-aligned EP rapporteur can't even put out documents of a decent editorial quality when dealing with this subject. Actually, various of Mrs. Walsmann's proposed amendments serve no other purpose than to correct typos found in DG GROW's proposal. That's OK, but then she should get her own act together.

The degree of Mrs. Walsmann's alignment with the EC proposal is close to 100%, just marginally below the level of her alignment with East Germany's Marxist-Leninist dictatorship when she started her parliamentary career in the late 1980s.

It is ridiculous that she claims in her draft report to seek to strike a balance between the interests of SEP holders and implementers, and her reference to the need to address hold-out is meaningless. She simply wants implementers to be able to use the envisaged process to delay with impunity, which is reflected by various aspects of her proposal, such as the justificatio nof her proposed amendment to Recital 34:

"The parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result."

That is the very opposite of what UK courts expect of the parties. In the UK, one has to accept to be bound by a determination of whatever terms are in fact FRAND. If Mrs. Walsmann got her way, implementers could just say after the end of the lengthy process that a royalty rate isn't low enough for their taste.

Mrs. Walsmann's report clearly reflects that her understanding of how SEP licensing and enforcement work is lacking and wanting. Instead of fixing the problems with the original proposal, she just wants to add more elements that are indicative of incompetence. Three particularly stupid examples:

  • She proposes a new Recital 10b that would advocate allowing Licensee Negotiation Groups (LNGs). However, the issue with LNGs is that they are irreconcilable with anti-cartel rules if the collective market share is too high and an actual or threatened group boycott obstructs the licensing process. Possibly influenced by her astroturfer soulmates who falsely claim to represent small and medium-sized enterprises, she then writes that "LNGs benefit SMEs in particular." But SMEs typically won't need an exemption from competition law if they coooperate in reasonable ways: they won't even come close to the market share thresholds where there might be antitrust scrutiny. The ones who need an exemption are the likes of Volkswagen and Toyota.

  • Proposed new Recital 10a talks about patent pools. The proposal says pools "should also commit to FRAND terms and conditions." What would be the practical meaning of that commitment? Pools can't enforce directly, so all that matters is that a given pool's licensors are bound by a FRAND licensing obligation.

  • The draft report makes an attempt to define the term "patent assertion entity" (in order to then withhold certain SME benefits of the bill from them). The problem is that this is not going to work in litigation. One of the criteria there is that a company "does not engage in [...] the research and development of such inventions"--but it's going to be pretty easy for licensing firms to show at least a small investment in R&D.

The draft report also goes directly against the case law of the European Court of Justice and the courts of various EU member states by imposing obligations on patent holders based on declared--as opposed to actual--essentiality.

Let's look at the bigger picture. As I said last month, DG GROW's proposal is a hot mess that lawmakers can at best dilute, but not fix. We have a proposal on the table now from the trade committee's rapporteur, and that one comes down to dilution. It's like "we should actually vote against it, but let's make it look more constructive and merely strike one part (aggregate royalties) and defang the others." And now we see what the rapporteur wants to do: she seeks to make things worse.

The Parliament shouldn't follow this rapporteur, and not even her own group, the European People's Party, which has a clearly more reasonable alternative to choose that was authored by another EPP MEP, Professor Danuta Hübner from Poland.