Read CEN and CENELEC’s position on Standard Essential Patents

On 27 April, the European Commission proposed a Regulation on Standard Essential Patents (SEP) and launched a consultation for public feedback. CEN and CENELEC prepared a position paper in response to this consultation, outlining the role of the European Standardization System in SEP and proposing changes to the text to better reflect this role.

The proposed regulation is intended to improve Standard Essential Patent licensing, encourage participation of firms in developing European standards, and expand the implementation of standardized technologies. CEN and CENELEC understand the importance of Standard Essential Patents and their contribution to the development of standards. However, CEN and CENELEC think that the current proposal should better reflect the reality of the nature of the involvement of European Standardization in the SEP Process.


In the response, CEN and CENELEC:

  • Note that the European Standardization Organizations do not take positions on and are not involved in defining FRAND licences, determining FRAND rates, carrying out essentiality checks, and in setting up parameters for FRAND licensing negotiations or patent dispute resolutions;
  • Stress that European Standardization Organizations (ESOs) take no position on whether patented elements incorporated in a draft standard being developed are “essential” to the use of the projected European standard;
  • Remind that ESOs already have their own SEP database that would have to coexist with the proposed EUIPO database, which could increase administrative burden on participants to standardization;
  • Note that ESOs have no authority over the behaviour of the users of standards, and patent policies of the ESOs are merely intended to describe what they do in case they are informed that a patent may be relevant to the use of a standard;
  • Insist that assessing the essentiality of a patent for the implementation of a standard may only be conceivable ex post. It cannot be done ex ante, at the time when the standard is being developed;
  • Ask that the proposed Regulation make the distinction between standardization bodies recognized in the EU and any other standard development organization.

CEN and CENELEC also recommend several changes to the proposed text that would better take into account the perspectives of CEN and CENELEC and that would ensure that the proposed regulation can be properly implemented by stakeholders. The full response to this consultation can be found here.


Giovanni COLLOT


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