The European Commission (DG GROW) has commissioned a study to a consortium led by Dr. Tim Pohlmann and his IPlytics team in cooperation with lead researcher Dr. Justus Baron from Northwestern University. The consortium further includes Dr. Pere Arque-Castells from the University of Groningen, Dr. Amandine Leonard from the University of Edinburgh, and Dr. Eric Sergheraert from Universite de Lille, as well as Darts-ip, part of Clarivate. The consortium is supported by an advisory group that includes industry practitioners, subject matter experts, legal experts as well as judges and academics.
The purpose of this study is to support the EU Commission with providing relevant economic analysis necessary for an Impact Assessment concerning the potential reform of the framework for valuation and licensing of Standard Essential Patents (“SEPs”). The objectives of the initiative are to (i) increase transparency and predictability in the SEP ecosystem; (ii) create conditions for a more efficient SEP licensing; (iii) foster stakeholder-led solutions; (iv) safeguard the level playing field among EU and non-EU stakeholders. This initiative includes actions to (i) enhance transparency regarding SEPs; (ii) introduce a system for independent third-party essentiality assessments under the control of a supervisory body; (iii) provide clarity on various aspects of FRAND; (iv) improve enforcement of SEPs; and (v) designate an Observatory or competence centers to conduct a number of tasks that may be necessary to implement the aforementioned actions.
The study will cover the following topics (among others):
- range of costs per license per relevant standard (could be based on case studies) – with identification of the costliest consuming elements (including essentiality and validity and FRAND)
- time to negotiate per license per standard (could be based on case studies) – with identification of the most time-consuming elements (including discussions on non-disclosure agreements, essentiality, validity, and FRAND)
The two points mentioned above (1 & 2) would also cover:
- for implementers: search and information costs to investigate for which SEPs they need a license, from whom to get this license and under which FRAND terms and conditions;
- for SEP holders: costs to identify the implementers, the applications and the patents that are likely infringed by implementers and the determination of the FRAND terms and conditions
- for both implementers and SEP owners: costs related to the examination of essentiality and validity
- for both implementers and SEP owners: litigation costs, including lawyer fees and expert opinions for the determination of the FRAND terms and conditions
The consortium has started the work in early December that will be published in a publicly available report next year.