FRAND (Fair Reasonable and Non-Discriminatory): “Contribution to the Debate on SEPs”

The EU Commission published (24 January 2021) the referred Contribution to the debate on SEPs.

The SEPs Expert Group consisted of high-ranking experts (e.g. of industry, professors of law, , judges). The expert group existed since July 2018. The Contribution says on page 8: ”The main task of the expert group was to provide the Commission with economic, legal and technical expertise and to assist the Commission to inform policy measures that it may take to ensure a balanced framework for smooth, efficient and effective licensing of SEPs. The expert group is also a forum for exchange of experience and best practices in the field of licensing and valuation of SEPs.... In November 20218 the Chair asked the expert group to identify the challenges for SEP Licensing wth a particular focus on the IoT....”. Some of the main findings of the members of the expert group are the following:

- evolution of FRAND Licensing in IoT Eco-systems;

- transparency as to the ownership and number of true SEPs covering an adopted standard;

- where to license in the value chain;

- how to establish fair , reasonable and non-discriminatory (FRAND) terms and conditions;

- how to facilitate negotiation and dispute handling

Some of the proposed solutions were to establish

- a confidential repository of SEP licensing agreements to be used by courts, competition authorities, public arbitration boards, or trusted persons to promote transparency (Proposal 47, p. 121);

-  independent boards of experts for assessing FRAND offers or determining a FRAND royalty upon request of a court or the parties negotiating a SEP license (Proposal 68, p. 145);

- a spezialized mediation institute for FRAND licensing disputes (Proposal 70, p. 147).

-  The 5th edition of the book  Gross/Strunk “Lizenzgebühren (Royalty Rates)“ takes into account the FRAND problems and offers solutions, e.g. many examples for FRAND royalty rates and the “Tool Box”.