SEM21-02 ETSI Seminar 2010 « Legal Considerations » Erik Jansen, LL.M. ETSI Legal Director...

SEM21-02

ETSI Seminar 2010

« Legal Considerations »

Erik Jansen, LL.M.ETSI Legal Director

Copyright © ETSI 2010. All rights reserved.ETSI Seminar Sophia Antipolis, 15-17 June 2010

World Class Standards

ETSI Seminar Sophia Antipolis, 15–17 June 2010 2

ETSI members should be aware that several legal considerations need to be taken into account while participating in the activities of ETSI.

- 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

Legal considerations



I.ETSI IPR Policy



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 in

respect of IPRs Definitions IPR Information Statement and Licensing Declaration Forms

http://www.etsi.org/WebSite/document/Legal/ETSI_IPR-Policy.pdf

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 in

respect of IPRs Where to find information on essential IPRs Other ETSI IPR Policy matters

http://www.etsi.org/WebSite/document/Legal/ETSI_Guide_on_IPRs.pdf



Tension

Inherent tense relationship between IPRs and Standards:

Standards are intended for free, collective use

IPRs are destined for private, exclusive use

Tension may lead to conflicts whenever the technical content of a standard falls within the scope of an IPR (for instance of a patent as defined by its claims)

Essential IPR = implementation of a standard is requiring the use of protected technology



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



MAIN CHARACTERISTICS

No technical reservation for the inclusion of IPRs in standards

Early identification and disclosure of essential IPRs

Ensuring the future applicability of the standards in full respect of the rights of the essential IPR owner 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)



DISCLOSURE OF ESSENTIAL IPRs

Members Duty to disclose 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 http://webapp.etsi.org/IPR/home.asp

No checking of essentiality of the disclosed IPR

Call for IPR by chairmen of technical bodies



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 got a clear 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



Overview

Simple participation in the work of ETSI

Own IPR which might be essential if proposal adopted

Any knowledge of other member/ non-member IPR which

might be essential if proposal adopted

Inform ETSI in a timely fashion

Immediate irr. FRAND-undertaking by IPR owner / request by ETSI to give irr.

FRAND-undertaking.

Yes No

Initiate procedure of non-availability (Clause 8 IPR Policy)

Information reflected in IPR Databasehttp://webapp.etsi.org/IPR/home.asp

Submitting an own technical proposal to ETSI

Own IPR which might beessential if proposal adopted

Draw ETSI’s attention on a bona fide basis



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


ETSI Seminar Sophia-Antipolis, 15–17 June 2010 12

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 was 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



II. ETSI Guidelines for

Antitrust Compliance



Guidelines on Antitrust

What is competition law?

It is the law ensuring that: barriers to trade are not errected effective competition in a market is preserved efficiency, innovation, [lower] free regulation of prices are

encouraged

What are the possible implications for ETSI and its Members?

Anti-competitive behaviour will be considered unenforceable and the competition authorities can impose significant fines with regards to such behaviour. In addittion, national courts can impose damages against the infringer of competition laws.



Guidelines on Antitrust

How to avoid anti-competitive behaviour in ETSI?

Read the ETSI Guidelines for Antitrust Compliance and comply with them.

http://www.etsi.org/WebSite/document/Legal/ETSI_Guidelines_for_Antitrust_Compliance.pdf

In case of doubt, the assistance of legal counsel experienced in competition law matters shall be sought before proceeding.

SEM21-02 ETSI Seminar 2010 « Legal Considerations » Erik Jansen, LL.M. ETSI Legal Director...

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