The EU has embarked on a mission. A mission to reduce
transaction costs in Standard Essential Patents ("SEP")
licensing and litigation. With its latest proposal for SEP
Regulation (COM(2023) 232 final of 27 April 2023)
("Proposal"), the EU Commission aims at the dissemination
of technology for the mutual benefit of SEP holders and standard
implementers. An ambitious claim. Can the SEP Proposal deliver? Not
necessarily, I believe. Read more to find out why.
Introduction
SEPs confer market power to their holders. SEPs cannot be
avoided when selling standard-compliant devices such as, for
example, 5G-enabled smartphones. To avoid the hold-up of standard
implementers (i.e., market foreclosure), SEP holders, therefore,
are under an obligation to inform the alleged infringer of the
infringement complained about and to offer to license the SEP (or
portfolio of SEPs) concerned on fair, reasonable and
non-discriminatory ("FRAND") terms prior to seeking
injunctive relief
