Changes from plenary report to adopted text

Added(c) where the requesting party fails to request, within the time limit referred to in subparagraph (a), the continuation of the FRAND determination, the competence centre shall terminate the FRAND determination.

Added4. Where the responding party agrees to the FRAND determination and commits to comply with its outcome pursuant to paragraph (2), including where such commitment is contingent upon the commitment ofthe competence centre shall notify the requesting party to comply with the outcome of the FRAND determination, the following shall apply:thereof. [Am. 188]

Added(a) the competence centre shall notify the requesting party thereof and request to inform the competence centre within seven days whether it also commits to comply with the outcome of the FRAND determination. In case of acceptance of the commitment by the requesting party, the FRAND determination shall continue and the outcome shall be binding for both parties; [Am. 189]

Added(b) where the requesting party does not reply within the time limit referred to in subparagraph (a) or informs the competence centre of its decision not to commit to comply with outcome of the FRAND determination, the competence centre shall notify the responding party and invite it to indicate within seven days whether it requests the continuation of the FRAND determination. [Am. 190]

Added(c) where the responding party requests the continuation of the FRAND determination, the FRAND determination shall continue, but Article 34(1) shall not apply to the court proceedings for by the responding party in relation to the same subject matter; [Am. 191]

Added(d) where the responding party fails to request, within the time-limit referred to in subparagraph (b), the continuation of the FRAND determination, the competence centre shall terminate the FRAND determination. [Am. 192]

Added4a. Each party may, at any time during the FRAND determination process, declare to commit to comply with its outcome. The declaring party may make its commitment to comply subject to the other party's commitment to the outcome. This shall not terminate the FRAND determination process. [Am. 193]

Added5. Where either party commits to comply with the outcome of the FRAND determination, while the other party fails to do so within the applicable time limits, the competence centre shall adopt a notice of commitment to the FRAND determination and notify the parties within 5 days from the expiry of the time-limit to provide the commitment. The notice of commitment shall include the names of the parties, the subject-matter of the FRAND determination, a summary of the procedure and information on the commitment provided or on the failure to provide commitment for each party. [Am. 194]

Added6. The FRAND determination shall concern a global SEP licence, unless otherwise specified by the parties in case both parties agree to the FRAND determination or by the party that requested the continuation of the FRAND determination. SMEs and start-ups that are parties to the FRAND determination may request to limit the territorial scope of the FRAND determination. [Am. 195]

AddedArticle 39 Selection of a panel of conciliators [Am. 196]

Added1. Following the reply to the FRAND determination by the responding party in accordance with Article 38(2), or the request to continue in accordance with Article 38(5), the competence centrethe requesting and responding parties shall propose at least 3 candidates for the FRAND determinationeach appoint one conciliator from the roster of conciliators referred to Article 27(2) to the panel of conciliators. The third. The parties or party shall select one of the proposed candidates as a conciliator for the FRAND determinationshall be appointed by the competence centre from the roster of conciliators referred to in Article 27(2). [Am. 197]

Added2. If the parties do not agree on a conciliator, the competence centre shall select one candidate from the roster of conciliators referred to in Article 27(2). [Am. 198]

AddedArticle 40 Appointment of conciliators [Am. 199]

Added1. The selected candidatecandidates shall communicate to the competence centre the acceptance to take up the task of a conciliator for the FRAND determination, which shall notify the communication of acceptance to the parties. [Am. 200]

Added2. The day following the notification of the acceptance to the parties, the conciliatorpanel of conciliators is appointed, and the competence centre shall refer the case to him/herthe panel of conciliators. [Am. 201]

AddedArticle 41 Preparation of the proceedings

AddedIf during the FRAND determination a conciliator is unable to participate, withdraws or needs to be replaced because he or she does not comply with the requirements as provided for in Article 26, the procedure provided for in Article 39 shall apply. The time period referred to in Article 37 shall be extended for the time necessary for the appointment of the new conciliator for the FRAND determination.

AddedArticle 42 Preparation of the proceedings

Added1. After the case is referred to the conciliatorpanel of conciliators in accordance with Article 40(2), he/sheit shall examine whether the request contains the information required under Article 36 in accordance with the Rules of procedure. [Am. 202]

Added2. He/sheThe panel of conciliators shall communicate to the parties or the party requesting the continuation of the FRAND determination the conduct as well as the schedule of procedure. [Am. 203]

AddedArticle 43 Written procedure

AddedThe conciliatorpanel of conciliators shall invite each party to file written submissions setting out its arguments concerning the determination of the applicable FRAND terms and conditions, including supporting documentation and evidence, and set appropriate time limits. [Am. 204]

AddedArticle 44 Objection to the FRAND determination

Added1. A party may submit an objection stating that the conciliatorpanel of conciliators is unable to make a FRAND determination on legal grounds, such as a previous binding FRAND determination or agreement between the parties, no later than in the first written submissionat any time. The other party shall be given opportunity to submit its observations. [Am. 205]

Added2. The conciliatorpanel of conciliators shall decide on the objection and either reject it as unfounded before considering the merits of the case or join it to the examination of the merits of the FRAND determination. If the conciliatorpanel of conciliators overrules the objection or joins it to the examination of the merits of the determination of FRAND terms and conditions, it shall resume consideration of the determination of FRAND terms and conditions. [Am. 206]

Added3. If the conciliatorpanel of conciliators decides that the objection is founded, it shall terminate the FRAND determination and shall draw up a report stating the reasons of the decision. [Am. 207]

AddedArticle 45 Conduct of the FRAND determination

Added1. The conciliatorpanel of conciliators shall assist the parties in an independent and impartial manner in their endeavour to reach a determination of FRAND terms and conditions. [Am. 208]

Added2. The conciliatorpanel of conciliators may invite the parties or the party requesting the continuation of the FRAND determination to meet with him/herit or may communicate with him/herit orally or in writing. [Am. 209]

Added3. The parties or the party requesting the continuation of the FRAND determination shall cooperate in good faith with the conciliatorpanel of conciliators and, in particular, shall attend the meetings, comply with his/herits requests to submit all relevant documents, information and explanations as well as use the means at their disposal to enable the conciliatorpanel of conciliators to hear witnesses and experts whom the conciliator might call. [Am. 210]

Added4. The responding party may join the FRAND determination at any moment before its termination.

Added5. At any stage of the procedure upon request by both parties, or the party requesting the continuation of the FRAND determination, as applicable, the conciliatorpanel of conciliators shall terminate the FRAND determination. [Am. 211]

AddedArticle 46 Failure of a party to engage

Added1. If a party:

Added(a) fails to comply with Article 45(3) or any request of the conciliatorpanel of conciliators, Rules of procedure or schedule of procedure referred to in Article 42(2), or [Am. 212]

Added(b) withdraws its commitment to comply with the outcome of the FRAND determination as set out in Art. 38, or [Am. 213]

Added(c) in any other way fails to comply with a requirement relating to the FRAND determination,

Addedthe conciliatorpanel of conciliators shall inform both parties thereof. [Am. 214]

Added2. Having received the notification of the conciliatorpanel of conciliators, the complying party may ask the conciliatorpanel of conciliators to take one of the following actions: [Am. 215]

Added(a) make a proposal for a FRAND determination in accordance with Article 55 based on the information available to it, attaching such weight as it considers fit to any evidence submitted to it,

Added(b) terminate the procedure.

Added3. If the party requesting the continuation of the FRAND determination fails to comply with any request of the conciliatorpanel of conciliators or in any other way fails to comply with a requirement relating to the FRAND determination, the conciliatorpanel of conciliators shall terminate the procedure. [Am. 216]

AddedArticle 47 Parallel proceedings in a third country

Added1. For the purposes of this article a parallel proceeding means a proceeding that satisfies the following conditions:

Added(a) any procedure before a court, tribunal, an administrative or state authority of a third country taking legally binding and enforceable decisions on patent assertion, injunction, infringement, abuse of a dominant market position or a determination of FRAND terms and conditions;

Added(b) concerning a licensing dispute regarding the same standard and implementation and a patent which in substance has the same claims as the SEPs that is subject to the FRAND determination;

Added(c) involving one or more of the parties to the FRAND determination as a party.

Added2. Where a parallel proceeding has been initiated before or during the FRAND determination by a party, the conciliatorpanel of conciliators, or where he/sheit has not been appointed, the competence centre, shall terminate the FRAND determination upon the request of anythe other party. [Am. 217]

AddedArticle 48 Evidence

Added1. Without prejudice to the protection of confidentiality in accordance with Article 54(3) at any time during the FRAND determination, at the request of a party or on its own motion, the conciliatorpanel of conciliators may request the production of documents or other evidence. [Am. 218]

Added2. The conciliatorpanel of conciliators may examine publicly available information and the competence centre’s register, database and confidential and non-confidential reports of other FRAND determinations, aggregate royalty determinations and results of essentiality checks, as well as other non-confidential documents and information produced by or submitted to the competence centre. [Am. 219]

AddedArticle 49 Witnesses and experts

AddedThe conciliatorpanel of conciliators may hear witnesses and experts requested by either party provided that the evidence is necessary for the FRAND determination and that there is time to consider such evidence. [Am. 220]

AddedArticle 50 Proposal for a determination of FRAND terms and conditions

Added1. At any time during the FRAND determination, the conciliatorpanel of conciliators or a party on its own motion or by invitation of the conciliatorpanel of conciliators may submit proposals for a determination of FRAND terms and conditions. [Am. 221]

Added2. If the requesting party has submitted a written proposal for FRAND terms and conditions in its written submission, the responding party shall be given opportunity to comment on it and/or submit a written counter-proposal in its reply.

Added3. When submitting suggestions for FRAND terms and conditions, the conciliatorpanel of conciliators shall take into account the impact of the determination FRAND terms and conditions on the value chain and on the incentives to innovation of both the SEP holder and the stakeholders in the relevant value chain. To that end, the conciliatorpanel of conciliators may rely on the expert opinion referred to in Article 18 or, in case of absence of such an opinion request additional information and hear experts or stakeholders. [Am. 222]

AddedArticle 51 Recommendation of a determination of FRAND terms and conditions by the conciliatorpanel of conciliators [Am. 223]

AddedThe conciliatorpanel of conciliators shall notify the parties a written recommendation of a determination of FRAND terms and conditions at the latest 5 months before the time limit referred to in Article 37. [Am. 224]

AddedArticle 52 Submission of reasoned proposals for determination of FRAND terms and conditions by the parties