CEN/CLC/WS SEP2
Industry Best Practices and an Industry Code of Conduct for Licensing of Standard Essential Patents in the field of 5G and Internet of Things

Our European vision is a positive one: we seek to promote fairness to all market participants, ensuring that European approaches benefit market participants in Europe, and as part of the international business community. The scope of the workshop will be to define a set of recommended best practices for licensing SEPs, in particular to benefit new sectors and verticals poised to recognize the new benefits associated with 5G and IoT adoption. These best licensing practices will aim to foster investment in, and rapid adoption and proliferation of, new and existing technologies enabling the IoT across consumer and enterprise use cases. It is anticipated that such best practices will address, and offer a positive way forward on a variety of issues surrounding SEP licensing including: - The background and history of the FRAND commitment, and the key competition law concerns requiring fair licensing of SEP technologies. - The conduct expected of licensors that have made a FRAND promise, and how licensees can and should behave to promote a FRAND outcome to negotiations. - Use of injunctions following the CJEU decision in the case of Huawei vs. ZTE (case C170/13), the decisions of DG Competition, and the decisions and guidance of other European and international authorities. - FRAND’s requirement of licensing to any and all that seek a license, such as set forth in the ETSI IPR Policy, and how efficiency considerations favor licensing at upstream levels of the supply chain. - The long history of FRAND licensing at all levels of the supply chain. - How to determine the value of a standardised technology, and how to separate that from “hold up value” associated with standardisation. As the patent laws have traditionally required, the value of a patent must be based on the technology it expressly claimed therein, and a patent owner cannot seek to exaggerate the value of its patent by focusing on value created by downstream innovators and devices. - The obligation to license patents without mandatory bundling on a “portfolio only” basis. - The appropriate application of Non-Disclosure Agreements to protect the confidentiality of sensitive business secrets, while ensuring that other information regarding the FRAND process remains transparent. - How to resolve licensing disputes efficiently in order to support continued investment in and adoption of wireless cellular technologies and other standardized technologies. - The role of voluntary arbitration or mediation, balanced with the basic right of access to the courts unless both parties agree to an alternative forum, and - How to prevent other patent hold up issues and other abuses. The workshop will address these issues also in light of the recent guidance provided by the European Commission’s Communication Setting out the EU Approach to Standard Essential Patents. A further objective of the workshop will be developing a workable industry Code of Conduct based on the best practices identified by workshop participants and considering ways to improve the licensing process. Such a Code of Conduct will benefit not only stakeholders in the SEP licensing ecosystem today, but also new market entrants, promoting the rapid uptake of standardised technologies, furthering interoperability and competition.

National mirror committee of CEN/CLC/WS SEP2