FSA Reactions on the European Commission’s Intellectual Property Action Plan

Brussels, January 26, 2021 – Focusing on matters relating to SEPs, we offer below our considered views and reactions to the Commission’s 25 November 2020 Communication Making the most of the EU’s innovative potential; An intellectual property action plan to support the EU’s recovery and resilience (the “IP Action Plan”).

In summary, the FSA:

• welcomes the EC’s conclusion that a fair approach to the licensing of SEPs is needed and the EC’s goal to bring more transparency to SEP licensing.
• agrees that problems relating to SEP licensing continue to occur and harm the development, use and promulgation of important standardized technologies within Europe.
• is concerned that the IP Action Plan provides insufficient attention to the economic and societal harms caused by abuses of SEPs, such as the unfair application of injunctions and refusals to license all members of the value chain.
• notes that the EC’s 2017 SEP Communication remains a viable guide for SEP licensing. Consistent with that guidance, the Commission should focus more resources on ensuring that SEP owners license their patents based on the value of their patented technical contributions rather than seeking to co-opt the value added by the industry’s agreement to make products in one way rather than another.
• agrees that any reforms should consider the input from stakeholders. This input should be solicited from different industries, not on a sector-by-sector basis. We strongly recommend that any initiative relating to SEPs should take note of and correspond with the licensing principles developed under the auspices of CEN-CENELEC and supported by over 50 organizations, Core Principles and Approaches for Licensing of Standard Essential Patents.
• believes that SEP essentiality checks could be helpful under certain circumstances. The FSA, therefore, encourages further careful consideration as to how such checks might be structured and the practical benefits to the ecosystem. We look forward to engaging with the Commission on this topic.