Context: More than four months have passed since the European Commission (EC) announced its decision to withdraw the proposed EU regulation on standard-essential patents (SEPs) (February 11, 2025 ip fray article), leaving less than two months (until August 10 to be precise) for a hypothetical but hardly-going-to-happen about-face (and loss of face). Undeterred by the odds and presumably driven by a desire to build momentum for some new initiative, some companies and lobbying entities are nevertheless campaigning for an EC decision to put the proposal back on the table. But there is no real momentum in any of the three decisive EU institutions: the von der Leyen II Commission is committed to less regulation, not more; in the EU Council, the national governments who disagree with the withdrawal (but don’t necessarily agree on a particular legislative text) fall far short of a dual qualified majority; and the largest group in the European Parliament (EP), the European People’s Party (EPP), is disinclined to pressure the EC to resume the process, regardless of the personal agenda of Marion Walsmann MEP, the parliament’s rapporteur on this bill.
What’s new: IP Europe, an organization whose members include major patent holders and particularly several leading wireless innovators, today wrote a letter to the EC and the Council delegations in an effort to cement the political will to abandon the proposal. IP Europe also provided a 162-page document that was written prior to the announcement of the withdrawal (then for use in the further legislative process) and flags numerous shortcomings of the proposal.
Direct impact & wider ramifications: This move can be explained with an abundance of caution, given that the EC is not realistically going to backtrack from the withdrawal of the EU SEP Regulation.
IP Europe provided the letter to certain media. Also, ip fray has taken a closer look at the three-column table that spans 162 pages and explains, meticulously and in granular detail, what “technical, legal and practical issues” the doomed proposal raises in the opinion of its authors. Some of those concerns have also been raised by ip fray, which is dissatisfied with the status quo but does not believe the proposal at hand has the potential to improve the SEP licensing process.
Even some of the EU member states who expressed a preference for continuing the process acknowledged serious issues. It is hard to see how even a subset of the original proposal would be passed into law at a time when the EU wants to avoid further overregulation.
We do not anticipate anything other than the formal finalization of the withdrawal of the proposal, yet wanted to inform our readership of the fact that letters are still being written, in this case in response to incessant lobbying efforts by net licensees.
If the Commission and the other EU institutions want to achieve something positive for Europe in this context, they should remain committed to avoiding overregulation. More than anything, the EU should ask itself why its companies have fallen so far behind that, for example, even Japan and South Korea are far ahead in WiFi 7 SEPs. And if there is any problem in SEP enforcement, it’s territorial overreach, which is not in the EU’s interest given that if all jurisdictions agreed to leave each other’s patents alone and limited their decisions to their own territories, the Unified Patent Court would still be an extremely important SEP enforcement forum, arguably number one in the world.
Florian Mueller