REGULATORY SCRUTINY BOARD OPINION Proposal for a REGULATIONL on standard essential patents and amending Regulation (EU)2017/1001

EUROPEAN COMMISSION
Brussels, 20.04.2023
SEC(2023) 174 final
REGULATORY SCRUTINY BOARD OPINION
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on standard essential patents and amending Regulation (EU)2017/1001
{COM(2023) 232 final}
{SWD(2023) 123 final} {SWD(2023) 124 final} {SWD(2023) 125 final}
Offentligt
KOM (2023) 0232 - SEK-dokument
Europaudvalget 2023
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This opinion concerns a draft impact assessment which may differ from the final version.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
regulatory-scrutiny-board@ec.europa.eu
EUROPEAN COMMISSION
Regulatory Scrutiny Board
Brussels,
RSB/
Opinion
Title: Impact assessment / Standard Essential Patents
Overall opinion: POSITIVE
(A) Policy context
This initiative aims to introduce legislation to strengthen the existing Standard Essential
Patents (SEP) licensing system in the EU. SEPs are patents that protect the technology that
is incorporated in a standard and are “essential” where an invention must be used in a
product to comply with a technical standard.
The absence of specific national or EU rules on SEPs means there is limited information
on who owns SEPs and it is not always clear that all patents sought to be licensed as SEP
are necessary (essential) to implement a standard. There is also limited information about
the level of SEP license fees so that SEP implementers have difficulties assessing the
SEP’s owner royalty demands. Finally, SEP licensing disputes are often time and costs
intensive.
This initiative is part of the Commission’s Intellectual Property Action Plan from
November 2020 and is complementary to its updated Standardisation Strategy from
February 2022.
B) Summary of findings
The Board notes additional information provided and commitments to make changes
to the report.
The Board gives a positive opinion. The Board also considers that the report should
further improve with respect to the following aspects:
(1) The report does not provide a clear overview of all the measures to minimise the
negative impacts on Small and Medium Enterprises (SMEs) nor their combined
impact.
(2) The report does not sufficiently disaggregate the costs to allow the administrative
costs to be identified for the purpose of the One In, One Out approach.
Ref. Ares(2023)1940801 - 17/03/2023
Ref. Ares(2023)2814053 - 20/04/2023
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(C) What to improve
(1) The report should better set out all the measures to minimise the negative impacts of
SMEs as well as their combined impacts. The description of the SME supporting measures
should be strengthened when presenting the options, when discussing the preferred option
and in the dedicated annex reporting on the SME test.
(2) The calculation of key estimates need to be clarified and precise references need to be
provided. The report should clearly present - both in the main report and in annex 3 - the
different categories of costs. This should allow to identify administrative costs in scope of
the One In, One Out approach.
(3) The report should clarify the importance of SEPs in the overall EU Intellectual
Property Rights system and further explain the links to the other relevant initiatives such as
Supplementary Protection Certificates and Compulsory Licensing. The effects of those
initiatives should be taken into account in the baseline.
(4) The report should provide further evidence supporting the choice of the EU
Intellectual Property Office (EUIPO) as the body responsible for the new EU competence
centre on SEPs. It should explain why the EUIPO is best suited for the corresponding tasks
and which alternative options have been discarded.
The Board notes the estimated costs and benefits of the preferred option(s) in this
initiative, as summarised in the attached quantification tables.
Some more technical comments have been sent directly to the author DG.
(D) Conclusion
The lead DG must take these recommendations into account before launching the
interservice consultation.
In order to accommodate the Board’s recommendations, the lead DG may need to
further adjust the attached quantification tables to reflect this.
Full title Proposal for a regulation of the European Parliament and of the
Council establishing a framework for transparent licensing of
standard essential patents
Reference number PLAN/202/9218
Submitted to RSB on 20/02/2023
Date of RSB meeting Written procedure
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ANNEX – Quantification tables extracted from the draft impact assessment report
The following tables contain information on the costs and benefits of the initiative on
which the Board has given its opinion, as presented above.
If the draft report has been revised in line with the Board’s recommendations, the content
of these tables may be different from those in the final version of the impact assessment
report, as published by the Commission.
I. Overview of Benefits (total for all provisions) – Preferred Option
Description Amount Comments
Direct benefits
Services provided by the
Competence centre (e.g.
SME assistance and
trainings, studies, case-law
repository)
EUR 5.9 million Information provided for free.
Free trainings and assistance to SMEs.
Information of interest of both parties to license negotiations.
Access to SEP register with
information on essentiality
of patents and SEP owners’
portfolio
EUR 71.1 million Free access to basic information (e.g. SEP owners contact details,
number of SEP registered). Fee based access to information on
essentiality of individual patents, and essentiality rate of owners’
portfolio.
Information of interest of both parties to license negotiations.
Savings due to conciliation EUR 7.5 million Includes potential of up to 70% decrease in court cases; as well as
value of advice on FRAND rate.
Both parties to license negotiations are likely to benefit.
Saving in negotiation costs
due to published aggregate
royalty
EUR 25.3 million Published aggregate royalty should facilitate license negotiations.
Both parties to license negotiations are likely to benefit
Indirect benefits
EPO/NPO EUR 29 million Potential additional income from new patents (uncertain if it will
materialise)
Administrative cost savings related to the ‘one in, one out’ approach*
n/a SEP licensing is not regulated in the EU. Hence there are no
existing administrative obligations
II. Overview of costs – Preferred option
Citizens/Consumers Businesses Administrations
One-off Recurrent One-off Recurrent One-off Recurrent
Action (a)
Direct adjustment
costs
Direct
administrative
costs
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Direct regulatory
fees and charges
EUR
17.6 million
Direct
enforcement costs
Indirect costs EUR
34.1 million
Costs related to the ‘one in, one out’ approach
Total
Direct adjustment
costs
Indirect
adjustment costs
Administrative
costs (for
offsetting)
Electronically signed on 17/03/2023 11:50 (UTC+01) in accordance with Article 11 of Commission Decision (EU) 2021/2121