HomeInsightsStandard essential patents: European Parliament adopts its negotiating position on proposed Regulation

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A standard essential patent is a patent that protects technology that is essential to implementing a standard. A standard is an agreed or established technical description, usually produced by a standard development organisation. Mobile phones, wireless connectivity, navigation systems in cars and smart meters all use technical standards. Once a technical standard has been agreed, manufacturers are required to make their products standard-compliant. In some cases, standards require the use of specific technologies protected by patents. A patent that protects technology which is essential to implementing a standard is known as a standard essential patent (“SEP”). Users of the technology have no option but to use the standard and therefore need a licence under any relevant SEPs. A standard essential patent is a patent that protects technology that is essential to

In 2023, the European Commission proposed a new Regulation on SEPs amending the current rules contained in a 2017 Regulation. A summary and update of the proposed Regulation were previously reported by Wiggin on 1 February 2024.

Following the adoption of a report by the European Parliament Committee responsible for the Regulation, JURI, in January, the European Parliament has now adopted its position on the text of the proposed Regulation.

Parliament has made some amendments to the original proposal around the function of the EUIPO Competence Centre, the body that fulfils certain tasks given to it under the current rules. This includes the creation of a SEP Licensing Assistance Hub for SMEs and start-ups to help them, free of charge with several tasks. In the case of SMEs or start-ups who are users of SEPs, the Hub can help them identify SEPs that might be relevant to their business, possible licensors and patent pools. For SMEs and start-ups that are SEP holders, the Hub should identify 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 at a European and global level. Parliament suggests, as an addition to the Recitals of the Regulation, that the Hub could also provide, under certain conditions, judicial support, such as a pro bono legal representative during court proceedings. “SMEs” appear to be what the EU refers to as micro, small or medium-sized enterprises (for which there is a definition under EU law) but “start-up” does not appear to be a defined term.

The Council of the EU must now adopt its position on the text of the proposed Regulation after which negotiations with the Parliament can commence.

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