Brussels, February 12, 2020 – We consider that the Horizontal Guidelines (and in particular the section on standardization agreements) on the whole have certainly contributed to promoting competition in the European Union. These rules have aimed at defining a balanced approach on licensing of Standard Essential Patents (SEPs), establishing a level playing field between different stakeholders involved. It is important for these rules to be renewed, further updated and clarified to ensure the promotion of innovation and competition to the benefit of businesses and consumers across Europe.
We consider that the Horizontal Guidelines (and in particular the section on standardization agreements) on the whole have certainly contributed to promoting competition in the European Union. These rules have aimed at defining a balanced approach on licensing of Standard Essential Patents (SEPs), establishing a level playing field between different stakeholders involved. It is important for these rules to be renewed, further updated and clarified to ensure the promotion of innovation and competition to the benefit of businesses and consumers across Europe.
It has been surprising to us that despite the clear language in the Horizontal Guidelines, some SEP owners have interpreted the guidelines to mean that despite their voluntary FRAND commitment, they could change their prior licensing practice to select unilaterally the level at which they prefer to license in the value chain, and thus exclude companies (including competitors) from their licensing program (i.e., manufacturers of end products). It would be important to clarify the guidelines to avoid such unintended consequences (including those consequences that stem from determining license valuation from products at the end of the value chain).
Applying the current Horizontal Guidelines (in particular the section on standardization agreements) may require a certain cost in terms of assessing the content, and advising on its interpretation in light of European Commission decisions as well as EU case law.
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