1. Legal Considerations IPR in ETSI
ETSI Seminar for EC Officials, April 2014
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2. Legal considerations
ETSI as an association and ETSI members are subject to different national and supranational laws.
The bodies of ETSI and the ETSI members are bound by the ETSI Directives.
Focus in this Seminar:
I. ETSI IPR Policy
II. ETSI Guidelines for Antitrust Compliance
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3. I. ETSI IPR Policy
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4. Where do I find the ETSI IPR Policy ?
The ETSI IPR Policy (Annex 6 of the ETSI Rules of Procedure)
Rights and obligations of Members, Technical Body Chairmen and the ETSI Secretariat with respect to IPRs
Definitions
IPR Information Statement and Licensing Declaration Forms
The ETSI guide on IPRs
Background/ Guidance on the interpretation of the rights and obligations deriving from the IPR Policy
Explanation on the duties of Members, Technical Body Chairmen and the ETSI Secretariat with respect to IPRs
Where to find information on essential IPRs
Other ETSI IPR Policy matters
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5. CHALLENGE
Solve the tension between IPRs and standards by striking the proper balance between all the different interests involved
Interests involved:
IPR owner: wishes to exploit its IPR commercially
third parties: wish to make and sell standard compliant products under reasonable conditions
public use/end-users: seek the widest possible choice among affordable and interoperable products
SDO: avoid wasting effort on the elaboration of a Deliverable which could subsequently be blocked by an essential IPR
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6. MAIN CHARACTERISTICS
No technical reservation for the inclusion of IPRs in standards
Early identification and disclosure of essential IPRs
Ensuring the future applicability of standards in full respect of the rights of essential IPR owners by requesting irrevocable FRAND licensing undertaking (FRAND = fair, reasonable and non-discriminatory)
No involvement of ETSI in any legal and/or commercial discussion on IPR matters (i.e. terms and conditions of the licenses to be determined by the parties of the agreement only)
Essential IPR = implementation of a standard is requiring the use of protected technology
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7. DISCLOSURE OF ESSENTIAL IPRs
Members
Duty to disclose “essential” IPR in a timely fashion
No requirement to conduct IPR searches
ETSI
Publication of disclosed “essential” IPR in the ETSI IPR Database
Users/Implementers of Standards can access information on essential IPRs at
No checking of essentiality of the disclosed IPR
Call for IPR by chairmen of technical bodies
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8. FRAND-Undertaking FRAND = Fair, Reasonable and Non-Discriminatory
ETSI requesting essential IPR owner to give irrevocable undertaking to grant irrevocable licences under FRAND terms and conditions
IPR owner may give or refuse FRAND licensing undertaking
ETSI has a clearly defined procedure in case of non-availability of licenses, e.g. Article 8 of the ETSI IPR Policy
Ts&Cs of the licenses to be determined by the parties of the agreement and outside ETSI
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9. EX ANTE DISCLOSURE OF LICENSING TERMS
= mechanism about submitting anticipated licensing terms for a given standard draft before the contribution becomes part of a standard
How are ex ante disclosures working in ETSI:
Ex ante disclosure is fully voluntary; i.e.
no obligation to disclose licensing terms of essential IPRs
lack of disclosure is not creating any implications
Disclosure of licensing terms is left to the usual free market mechanisms
Appropriate safeguards
New ETSI Antitrust Guidelines
ETSI is not involved to a large extent in the disclosure of licensing terms
No discussion/negotiation of specific licensing terms within ETSI
ETSI is not responsible for determining whether the licensing terms disclosed ex ante are FRAND
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10. CONCLUSIONS
ETSI IPR Policy is fairly balancing all the interests involved
ETSI IPR Policy is one of the key elements for the success of ETSI’s globally-applicable standards
allowing Members to fully reserve their IPRs is beneficial to the drafting of excellent and high-quality standards
incentive for high technology companies to participate in the standardization process
ETSI will continue to lead the debate on IPRs and Standards
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