Withdrawal of the EU SEP regulation proposal

So, after much heated debate, the European Commission proposals for the regulations of Standards Essential Patents or SEPs have been withdrawn. This was announced in a press release issued on Tuesday. The reason given is “No foreseeable agreement — the Commission will assess whether another proposal should be tabled or another type of approach should be chosen”. I would imagine that it will be at least a couple of years before any new proposals are agreed, if indeed that ever happens.

Since the proposals were first put forward, players in this area have adopted entrenched positions. For the European telecommunication heavyweights and patent pools, the proposals were seen as a huge drag on investment and innovation. On the other side, SEP implementers were generally happy with the suggestion that there would be some pre-filtering of alleged SEPs and an additional hurdle to litigation and injunctions. Judges of the newly instituted Unified Patent Court have also weighed in with their opinions, suggesting a cautious approach to regulation considering the developing practice of the UPC in regard to SEPs and FRAND licensing. I think that the views of the UPC judges will have been very persuasive, as the SEP and FRAND landscape in Europe is likely to be very different in a few years’ time, possibly moving in favour of the SEP implementers.  

I suspect that the European Union Intellectual Property Office in Alicante will also be breathing a huge sigh of relief at the withdrawal of the proposal. They can focus again on their responsibility for trade marks and designs, and don’t need to worry, for the time being at least, about developing a competence across many varied and hugely complex technical areas which might have required the recruitment of hundreds of technical specialists or the draining of resources from the European Patent Office.