This study was commissioned by the European Commission. The contract for the study was awarded to Iplytics GmbH after a call for proposals, based upon a proposal by a consortium consisting of lead researcher Dr. Justus Baron (Northwestern University), Dr. Tim Pohlmann (Iplytics and TU Berlin), Dr. Pere Arque-Castells (University of Groningen), Dr. Amandine Leonard (University of Edinburgh), and Dr. Eric Sergheraert (University of Lille).
The European Commission has long taken an active interest in Standard-Essential Patents (SEP). In its “Communication on Standard Essential Patents” of November 2017, the Commission called for a balanced approach to SEP licensing and emphasized the importance of greater transparency. In its “Intellectual Property Action Plan” of November 2020, the European Commission noted that it sees continued need for reforms to the SEP licensing framework, and discussed possible policy initiatives; such as support for industry-led initiatives and regulation.
Since January 2022, the European Commission has conducted an Impact Assessment of different policy options regarding SEP Licensing. The present study provides an empirical assessment of potential challenges in SEP licensing (‘Problem Assessment Study’). This study is one input to the Commission’s Impact Assessment. The consortium has further developed an impact assessment of potential policy options with respect to one specific policy issue, namely transparency regarding the actual essentiality of patents declared to be potentially standard-essential (declared SEPs) (‘Impact Assessment Study’). Both studies are published simultaneously with the Commission’s Impact Assessment.
The present study was written by the five consortium members, based upon regular exchanges with the Commission. The consortium determined the scope and methodology of the study based on the Technical Specifications for the contract with the European Commission, as well as further elaborations on the objectives of the study the Commission.
Based on the potential problems identified by the Commission, the Commission and the consortium jointly selected the topics for the ‘Problem Assessment Study’. The topics are divided in ‘Complexities in SEP Licensing’, i.e. specific features of SEP licensing that may contribute to its complexity; and ‘Potential Problems in SEP Licensing’, i.e. problems arising in the context of SEP Licensing, at least partly as a consequence of the aforementioned complexities.
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