A year in review: transparency and the EU Communication on SEPs

A year on from the European Commission’s Communication on standard-essential patents (SEPs), published in November 2017, Monica Magnusson, vice president IPR policy at Ericsson, looks at the relevant developments since, focusing on industry efforts to improve publicly-available information on SEPs.

In November 2017, the European Commission issued a long-awaited Communication titled “Setting out the EU Approach to Standard Essential Patents (SEPs)”. Overall, the Communication framed licensing of SEPs in a careful manner, stressing its aim of “incentivising the development and inclusion of top technologies in standards, by preserving fair and adequate return for these contributions, and ensuring smooth and wide dissemination of standardised technologies based on fair access conditions”.

It is no secret that the Communication was the subject of significant industry debate before its publication. In such a polarised climate, it would have been a challenge for any regulator to propose a balanced policy approach; from that perspective, the Communication can be considered a significant success—or, at the very least, an important step forward.

First, several licensing negotiations that had been halted before the Communication was published (given the uncertainty around the impending EU policy guidance) were successfully concluded. In particular, the December 2017 licensing agreement between Avanci and BMW is significant—introducing a tripartite structure and a fixed dollar per unit royalty which will never increase (regardless of how many patent holders join the pool).