The European Commission Proposal for a Regulation on Standard Essential Patents: A Curate’s Egg

On 27 April 2023, the European Commission proposed a new regulation on the licensing of standard essential patents.

This article summarizes the proposal and provides a preliminary assessment of its main provisions. While the proposal aims to address a number of outstanding issues inherent in the current legal framework for SEPs, such as the criteria for determination of FRAND rates, and inefficiency of parallel licensing negotiations with individual licensees, there remain various concerns that deserve further consideration during the legislative process. The provisions on transparency of FRAND terms could perhaps be strengthened, and rate determination made mandatory, whereas provisions on registration and ex ante essentiality determination (and associated delays) might be weakened or abandoned as too costly and insufficiently effective.

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