Changes from report parliamentary committee draft to plenary report

AddedArticle 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.

AddedArticle 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.

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

AddedArticle 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.

AddedArticle 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.

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

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

AddedArticle 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:

AddedArticle 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.

AddedArticle 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.

AddedArticle 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.

AddedArticle 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:

Article 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;

Change 52

RemovedThe parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result.

AddedArticle 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.

Change 53

ChangedArticle 38 – paragraph 34 – pointintroductory b:part: (b)4. whereWhere the requestingresponding party requests the continuation of the FRANDagrees determination,to the FRAND determination shall continue, butthe Articlecompetence 34(1)centre shall not apply to the court proceedings fornotify the requesting party in relation to the same subject matter;thereof.

Change 54

RemovedThe parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result.

AddedArticle 38 – paragraph 4 – point a: deleted

RemovedArticle 38 – paragraph 4 – introductory part: 4. Where the responding party agrees to the FRAND determination the following shall apply:

RemovedThe parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result.

RemovedArticle 38 – paragraph 4 – point a: (a) the competence centre shall notify the requesting party thereof;

RemovedThe parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result.

Article 38 – paragraph 4 – point b: deleted

Change 55

RemovedThe parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result.

AddedArticle 38 – paragraph 4 – point c: deleted

AddedArticle 38 – paragraph 4 – point d: deleted

AddedArticle 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.

Article 38 – paragraph 5: deleted

Change 56

RemovedThe parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result.

AddedArticle 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.

RemovedArticle 44 – paragraph 3: 3. If the conciliator decides that the objection is founded, he/she shall terminate the FRAND determination and shall draw up a report stating the reasons of the decision.

AddedArticle 39 – title: Selection of a panel of conciliators

RemovedArticle 46 – paragraph 1 – point a: (a) fails to comply with Article 45(3) or any request of the conciliator, Rules of procedure or schedule of procedure referred to in Article 42(2),

AddedArticle 39 – paragraph 1: 1. Following the reply to the FRAND determination by the responding party in accordance with Article 38(2), the requesting and responding parties shall each appoint one conciliator from the roster of conciliators referred to Article 27(2) to the panel of conciliators. The third conciliator shall be appointed by the competence centre from the roster of conciliators referred to in Article 27(2).

AddedArticle 39 – paragraph 2: deleted

AddedArticle 40 – title: Appointment of conciliators

AddedArticle 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.

AddedArticle 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.

AddedArticle 42 – paragraph 1: 1. After the case is referred to the panel of conciliators in accordance with Article 40(2), it shall examine whether the request contains the information required under Article 36 in accordance with the Rules of procedure.

AddedArticle 42 – paragraph 2: 2. The 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.

AddedArticle 43 – paragraph 1: The panel 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.

AddedArticle 44 – paragraph 1: 1. A party may submit an objection stating that the panel of conciliators is unable to make a FRAND determination on legal grounds, such as a previous binding FRAND determination or agreement between the parties, at any time. The other party shall be given opportunity to submit its observations.

AddedArticle 44 – paragraph 2: 2. The panel 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 panel 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.

AddedArticle 44 – paragraph 3: 3. If the panel 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.

AddedArticle 45 – paragraph 1: 1. The panel of conciliators shall assist the parties in an independent and impartial manner in their endeavour to reach a determination of FRAND terms and conditions.

AddedArticle 45 – paragraph 2: 2. The panel of conciliators may invite the parties or the party requesting the continuation of the FRAND determination to meet with it or may communicate with it orally or in writing.

AddedArticle 45 – paragraph 3: 3. The parties or the party requesting the continuation of the FRAND determination shall cooperate in good faith with the panel of conciliators and, in particular, shall attend the meetings, comply with its requests to submit all relevant documents, information and explanations as well as use the means at their disposal to enable the panel of conciliators to hear witnesses and experts whom the conciliator might call.

AddedArticle 45 – paragraph 5: 5. At any stage of the procedure upon request by both parties, or the party requesting the continuation of the FRAND determination, as applicable, the panel of conciliators shall terminate the FRAND determination.

AddedArticle 46 – paragraph 1 – point a: (a) fails to comply with Article 45(3) or any request of the panel of conciliators Rules of procedure or schedule of procedure referred to in Article 42(2), or

Article 46 – paragraph 1 – point b: deleted

Change 57

RemovedThe parties should be able to wait until the outcome of the FRAND determination procedure in order to decide if they want to be bound by the result.

AddedArticle 46 – paragraph 1 – subparagraph 1: the panel of conciliators shall inform both parties thereof.

RemovedArticle 47 – paragraph 2: 2. Where a parallel proceeding has been initiated before or during the FRAND determination by a party, the conciliator, or where he/she has not been appointed, the competence centre, shall terminate the FRAND determination upon the request of the other party.

AddedArticle 46 – paragraph 2 – introductory part: 2. Having received the notification of the panel of conciliators, the complying party may ask the panel of conciliators to take one of the following actions:

RemovedArticle 48 – paragraph 2: 2. The conciliator 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 non-confidential documents and information produced by or submitted to the competence centre.

AddedArticle 46 – paragraph 3: 3. If the party requesting the continuation of the FRAND determination fails to comply with any request of the panel of conciliators or in any other way fails to comply with a requirement relating to the FRAND determination, the panel of conciliators shall terminate the procedure.

AddedArticle 47 – paragraph 2: 2. Where a parallel proceeding has been initiated before or during the FRAND determination by a party, the panel of conciliators, or where it has not been appointed, the competence centre, shall terminate the FRAND determination upon the request of the other party.

AddedArticle 48 – paragraph 1: 1. 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 panel of conciliators may request the production of documents or other evidence.

AddedArticle 48 – paragraph 2: 2. The panel 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.

AddedArticle 49 – paragraph 1: The panel 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.