Rival SEP guidelines launched in Europe
Two diverging sets of guidelines for the licensing of standard-essential patents (SEPs) for 5G technology and the internet of things (IoT) were published earlier today, as the opposing sides continue to clash over best practice.
While both sets of guidelines have been endorsed by standard-setting bodies European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (CENELEC), the differences are stark.
IP Europe, a coalition of research and development-intensive organisations headquartered in Europe, published its guidance “Principles and guidance for licensing Standard Essential Patents in 5G and the Internet of Things, including the Industrial Internet” (which is known as CWA1) today.
The rival set of guidelines, called “Core Principles and approaches for Licensing of SEPs” and known as CWA2, was issued by trade bodies the App Association (ACT) and the Fair Standards Alliance (FSA).
CWA1: IP Europe and Nokia
Back in October 2017, representatives from technology companies including Nokia, Ericsson and Orange formed a committee aiming to establish an industry-wide code on best practice for licensing SEPs, backed by IP Europe.
Kerry Miller, chairman of this CEN-CENELEC workshop and head of IP regulatory affairs at Nokia, said that the primary objective of the agreement is to help more companies understand and navigate the SEPs licensing process.
Speaking to WIPR, Miller said that with the advent of 5G technology, many new companies were expected to enter into the market.
The companies that contributed to the workshop accounted for nearly half of the contributions to cellular standards, as well as users of the technology such as Mitsubishi, Panasonic and Philips, according to Miller.
He added: “We want to make it easier for SMEs and other companies to access the 5G standard and develop connected products and services for the IoT. We succeed together. It is only this way that we can build and consolidate a true European innovation ecosystem.”
CWA1 contains six principles for conducting fair, reasonable and non-discriminatory (FRAND) licensing negotiations, and supplementary guidance on current practices in the ICT sector.
The fourth principle reads: “‘Fair and reasonable’ compensation should be based upon the value of the patented standardised technology to its users.”
CWA2: ACT and FSA
ACT and FSA backed a different CEN-CENELEC workshop, featuring representatives from companies including Apple, Honda and Volkswagen.
A draft version of CWA2, with six guidelines, was published in January this year.
According to a release from FSA, the workshop participants hope that this guide will “help avert the litigation and antitrust problems already experienced over the past decade in the smartphone sector, and more recently in the automotive sector”.
Brian Scarpelli, senior global policy counsel at ACT, said at a press conference yesterday that the purpose of the document was to outline “practicable and usable SEP licensing best practices that balance the interests of all in the SEP licensing ecosystem”.
SEP owners should only threaten injunctions against licensees in “exceptional circumstances” and where disputes cannot be resolved by adjudication, according to the guidelines.
In contrast to CWA1, this set of guidelines stated that SEPs should be valued “based on their own technical merits and scope, not based on downstream values or uses”.
Mike Sax, founder of ACT, said that the agreement came at an “absolutely crucial time” in the proliferation of IoT-related technologies.
“Without those companies being able to licence those technologies, in a way that is fair and reasonable, none of those companies will be able to thrive,” Sax added.
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