The European Parliament will quickly take a place on the proposed EU Regulation on Normal-Important Patents (SEPs), which goals to handle imbalances, inefficiencies and uncertainties within the present SEP licensing ecosystem. The implementation of such an impactful regulation for EU innovation begs on important query — does the EU regulation on SEPs assist the elemental proper to mental property (IP)? The reply is obvious, sure.
Whereas EU regulation protects the elemental proper to property, together with IP (see Article 17 of the EU Constitution of Basic Rights), such safety is just not with out limits. Certainly, that exact same provision acknowledges that “the usage of property could also be regulated by regulation in as far as is important for the overall curiosity”. And that is precisely what the proposed EU regulation does, particularly offering some safeguards geared toward making the SEP licensing ecosystem extra clear and fairer within the curiosity of competitors and shoppers, whereas nonetheless respecting the correct of SEP house owners to implement their IP rights in opposition to infringers, though topic to particular procedural necessities.
The necessities beneath the proposed regulation assist elementary rights, particularly the correct to IP.
In different phrases, IP is just not an absolute proper and introducing limits to IP according to voluntary guarantees made by IP holders satisfies vital public pursuits together with the safety of competitors and shoppers’ pursuits in strategic markets (in our case, that of standardized applied sciences). Such limits don’t quantity to a complete denial of IP rights. As has been famous, “Article 17(2) protects rights and never the system. It’s not an immunity from legislative change”.
One other elementary proper, the correct of entry to courts (Article 47 of the EU Constitution), can also be not absolute so long as the restrictive measure doesn’t impair the essence of the correct and is proportionate to the goal it purports to realize. The proposed SEP Regulation would impose a non-binding, but obligatory out-of-court continuing to find out FRAND circumstances earlier than litigation might be initiated by SEP house owners.
For instance, within the case Rosalba Alassini v. Telecom Italia SpA, the Court docket of Justice of the European Union (CJEU) debated over a obligatory situation for events to have to aim to settle disputes (over common service and customers’ rights referring to digital communications networks and companies) by out-of-court mechanisms earlier than approaching a nationwide court docket. It was held that the goals of such a measure was legit and never disproportionate to the goals.
The brand new regime can even supply patent house owners extra alternatives to achieve the market.
This line of reasoning was additionally used within the seminal SEP case Huawei v. ZTE, the place the CJEU held that whereas the irrevocable dedication to grant licenses on FRAND phrases by SEP house owners can’t deny their rights, it nonetheless justifies the imposition on them of an obligation to adjust to particular necessities when going to courts and asking for injunctions and different treatments.
Contemplating the above, the necessities beneath the proposed regulation assist elementary rights, particularly the correct to IP, whereas introducing proportionate limits to SEPs holders’ enforcement rights within the curiosity of wholesome competitors. The brand new regime can even supply patent house owners extra alternatives to achieve the market by giving them entry to a broader pool of requirements customers and downstream innovators, triggering and sustaining a spiral of continued innovation.
