Changes from plenary report to adopted text

RemovedArticle 30 – paragraph 1: 1. Within 90 days following the publication of the list of registered SEPs selected for sampling, any stakeholder may submit to the competence centre written observations and evidence concerning the essentiality of the selected SEPs.

Added7. The competence centre shall keep the register easily accessible for public inspection. The data shall be considered to be of public interest and may be accessed by any third party free of charge.

RemovedArticle 30 – paragraph 3: 3. The competence centre shall provide the observations, evidence and the responses by the SEP holder to the evaluator following the expiry of the set time limits.

AddedArticle 5 Electronic database

RemovedArticle 31 – paragraph 4: 4. The evaluator shall duly consider any information provided by the SEP holder or by stakeholders in accordance with the procedure laid down in Article 30.

Added1. The competence centre shall establishset up and maintain an electronic database for SEPs. [Am. 95]

RemovedArticle 32 – paragraph 3: 3. The peer evaluator shall duly consider all the information submitted by the SEP holder or stakeholders which have provided observations or evidence in accordance with the procedure laid down in Article 30, the reasons of the initial evaluator why the SEP may not be essential to the standard and any amended claim chart or additional observations provided by the SEP holder.

Added2. The following information in the database shall be accessible to any third party subject to the registration with the competence centre:

RemovedArticle 32 – paragraph 5: 5. The peer evaluator shall duly consider the observations of the SEP holder or the observations or evidence provided by other stakeholders in accordance with Article 30 and issue a final reasoned opinion to the competence centre within 3 months from its appointment. The final reasoned opinion shall include the name of the SEP holder, of the evaluator and of the peer evaluator, the SEP subject to the essentiality check, the relevant standard, a summary of the examination and peer evaluation procedure, the preliminary conclusion of the evaluator, the result of the peer evaluation and the reasons on which that result is based.

Added(a) patent bibliographic data on the claimed SEP or SEP, including priority date, family members, grant date and expiration date;

RemovedArticle 34 – paragraph 1 – subparagraph 1 a (new): The FRAND determination shall not apply to existing licensing agreements during their application term.

Added(b) publicpublicly available standard terms and conditions, including SEP holder’s royalty, royalty-free and discount policies pursuant to Article 7, first paragraph, point (b), if available; [Am. 96]

RemovedArticle 34 – paragraph 4: 4. The obligation to initiate FRAND determination pursuant to paragraph 1 is without prejudice to the possibility for either party to request, pending the FRAND determination, the competent court of a Member State to issue a provisional injunction of a financial nature against the alleged infringer. The provisional injunction shall exclude the seizure of property of the alleged infringer and the seizure or delivery up of the products suspected of infringing a SEP. Where national law provides that the provisional injunction of a financial nature can only be requested where a case is pending on the merits, either party may bring a case on the merits before the competent court of a Member State for that purpose. However, the parties shall request the competent court of a Member State to suspend the proceedings on the merits for the duration of the FRAND determination. In deciding whether to grant the provisional injunction, the competent court of a Member State shall consider that a procedure for FRAND determination is ongoing.

Added(c) publicpublicly available standard terms and conditions for SEP licensing to SMEs, and start-ups pursuant to Article 62(1), including royalty-free access, if available; [Am. 97]

RemovedArticle 34 – paragraph 5: 5. Once the FRAND determination is terminated, the whole range of measures, including provisional, precautionary and corrective measures, shall be available to the parties.

Added(d) information regarding known products, processes, services or systems and implementations and, where available, any known market data pursuant to Article 7, first paragraph, point (b)(a); [Am. 98]

RemovedArticle 36 – paragraph 1 – point d: (d) the commercial name of the standard and the name of the relevant standard developing organisation.

Added(e) information pertaining to essentiality pursuant to Article 8;

RemovedArticle 36 – paragraph 1 – point f: (f) references to any other related FRAND determination, if applicable.

Added(f) non-confidential information on FRAND determinations pursuant to Article 11;

RemovedArticle 36 – paragraph 2 – introductory part: 2. Where the request to initiate a FRAND determination is made by a SEP holder, it shall contain, in addition to the information listed in paragraph (1), the following information:

Added(g) information on aggregate royalties pursuant to Articles 15, 16 and 17;

RemovedArticle 37 – paragraph 1: 1. Unless otherwise agreed by the parties, the period from the date of the submission of the request to continue the FRAND determination in accordance with Article 38(3)(b) or Article 38(3)(c) or Article 38(4)(a), second sentence, or Article 38(4)(c), as applicable, until the date of the termination of the procedure shall not exceed 9 months.

Added(h) expert opinions referred to in Article 18;

RemovedArticle 38 – paragraph 1: 1. The competence centre shall notify the request to the responding party within 7 days, including the information submitted pursuant to Article 36, and shall inform the requesting party thereof.

Added(i) non-confidential reports of the conciliators pursuant to Article 57;

RemovedArticle 38 – paragraph 2: 2. The responding party shall notify the competence centre within 15 days from the receipt of the notification of the request for FRAND determination from the competence centre in accordance with paragraph (1). The response shall indicate whether the responding party agrees to the FRAND determination in case of disagreement, include the reasons for declining to participate.

Added(j) SEPs selected for essentiality checks pursuant to Article 29, the reasoned opinions or the final reasoned opinions pursuant to Article 33;

RemovedArticle 38 – paragraph 3 – introductory part: 3. Where the responding party does not reply within the time limit laid down in paragraph (2) or informs the competence centre of its decision not to participate in the FRAND determination, the following shall apply:

Added(k) the date and the grounds for removal of the SEP from the database pursuant to Article 25;

RemovedArticle 38 – paragraph 3 – point a: (a) the competence centre shall notify the requesting party thereof and invite it to indicate within seven days whether it requests the continuation of the FRAND determination;

Added(l) information on SEP related rules in third countries pursuant to Article 12;

RemovedArticle 38 – paragraph 3 – point b: (b) where the requesting 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 the requesting party in relation to the same subject matter.

Added(m) case-law and reports pursuant to Article 13(3) and (5);

RemovedArticle 38 – paragraph 4 – introductory part: 4. Where the responding party agrees to the FRAND determination the competence centre shall notify the requesting party thereof.

Added(n) awareness raising and training materials.

RemovedArticle 38 – paragraph 4 – point a: deleted

Added3. Access to the information pursuant to paragraph (2), points (f), (h), (i), (j) and (k) of this Article shall be available to any third party subject to registration with the competence centre and may be subject to the payment of a reasonable fee, as set out in Article 63fee. [Am. 99]

RemovedArticle 38 – paragraph 4 – point b: deleted

Added4. However, public authorities, including courts, shall have full access to the information in the database referred to in paragraph (2) free of charge subject to registration with the competence centre. Academic institutions may also request access to the information free of charge solely for the purpose of conducting academic tasks. [Am. 100]

RemovedArticle 38 – paragraph 4 – point c: deleted

AddedArticle 6 Common provisions on the register and the database

RemovedArticle 38 – paragraph 4 – point d: deleted

Added1. When a party requests that data and documents of the database be kept confidential, that party shall provide a reasoned statement justifying this confidentiality and, where reasonably possible, a non-confidential version of the information submitted in confidence in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. The competence centre may disclose that non-confidential version. [Am. 101]

RemovedArticle 38 – paragraph 4 a (new): 4a. 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.

Added2. The competence centre shall keep the files of any procedure relating to the registration of the SEP. The Executive Director of the EUIPO shall determine the form in which those files shall be kept and made available. The competence centre shall keep the files for 10 years after the removal of the registration of the SEP. Upon request, personal data may be removed from the register or the database after 18 months from the expiry of the SEP or removal of the SEP from the register.

RemovedArticle 38 – paragraph 5: deleted

Added3. The competence centre may correct any information contained in the register or the database pursuant to Article 23.

RemovedArticle 38 – paragraph 6: 6. 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.

Added4. The SEP holder and its legal representative in the Union shall be notified of any change in the register or the database when that change concern a particular SEP.

RemovedArticle 39 – title: Selection of a panel of conciliators

Added5. Upon request, the competence centre shall issue registration certificates or certified copies of the data and documents in the register or the database. The registration certificates and certified copies may be subject to the payment of a reasonable fee. [Am. 102]

Change 2

ChangedArticle6. 39The –Commission paragraphshall 1:determine 1.the Followingconditions theof replyaccess to the FRAND determinationdatabase, byincluding the responding partyfees infor accordancesuch withaccess, Articleor 38(2),for theregistration requestingcertificates and responding parties shall each appoint onecertified conciliatorcopies from the roster of conciliatorsdatabase referredor tothe Articleregister, 27(2)by tomeans theof panelan ofimplementing conciliators.act. The thirdimplementing conciliatoract shall be appointed by theadopted competencein centreaccordance fromwith the roster ofexamination conciliatorsprocedure referred to in Article 27(2).68(2).

Change 3

RemovedArticle 39 – paragraph 2: deleted

AddedArticle 7 Identification of implementations of a standard and related SEP licensing terms and conditions

RemovedArticle 40 – title: Appointment of conciliators

AddedA SEP holder shall provide to the competence centre the following information:

RemovedArticle 40 – paragraph 1: 1. The selected candidates 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.

Added(a) information as regards the products, processes, services or systems in which the subject-matter of the SEP may be incorporated or to which it is intended to be applied, for all existing or potential implementations of a standard and, where available, any market data, to the extent such information is known to the SEP holder. [Am. 103]

RemovedArticle 40 – paragraph 2: 2. The day following the notification of the acceptance to the parties, the panel of conciliators is appointed, and the competence centre shall refer the case to the panel of conciliators.