Draft principles and guidelines published today and covering the licensing of 5G and IoT-related standards essential patents on FRAND terms have been slammed by the ACT App Association as “little more than an endorsement of abusive licensing practices against downstream innovators including SMEs and start-ups”.
The guidelines were put together as a draft CEN-CENELEC Workshop Agreement (CWA) by IP Europe and companies including Ericsson, France Brevets, InterDigital, Mitsubishi, Nokia, Orange and Qualcomm. “It is our initial effort to capture the licensing principles that have enabled the rapid development and deployment of 2G, 3G and 4G standardised mobile communication technologies in the smartphone and ICT sector,” explains group chair Kerry Miller. Six principles are listed in the guidelines:
Owners of patent rights which are essential for using standardised technologies (SEPs) should allow access to that patented technology for implementing and using the standard.
Both the SEP owner and the potential licensee should act in good faith with respect to each other with the aim of concluding a FRAND licence agreement in a timely and efficient manner.
Each party should provide to the other party, consistent with the protection of confidentiality, information that is reasonably necessary to enable the timely conclusion of a FRAND licence.
“Fair and reasonable” compensation should be based upon the value of the patented standardised technology to its users.
A SEP owner should not discriminate between similarly situated competitors.
If the parties are unable to conclude a FRAND licence agreement within a reasonable timeframe they should seek to agree to third party determination of a FRAND licence either by a court or through binding arbitration.
“A sixty-day public comment period will now begin on the principles and guidance that we have put forward and we very much welcome participation and feedback during that period. We also intend to evolve our guidance over time to help businesses and policymakers understand other licensing practices and solutions as new markets open and mature,” says Miller. (…)
This is an excerpt from an article that appeared in IAM on 11 October 2018. You can read it in full here