Context: Last month, soon after it became known that the European Commission’s (EC) proposal for a regulation on standard-essential patents (SEPs) was stuck in the EU Council (December 5, 2024 ip fray article), the proposal was dropped (February 11, 2025 ip fray article). This, according to EC Executive Vice President for Tech Sovereignty Henna Virkkunen, was because Europe “needs less bureaucracy and more space for innovation and entrepreneurship” and the EC wants to “cut the red tape and work smarter.” The market has been divided over that decision, although a Council Working Group meeting involving all Member States voted in favor of the withdrawal last week (February 28, 2025 ip fray article).
What’s new: During the “Regulatory and Enforcement Developments for SEPs” conference hosted by the Patent Office of the Republic of Poland and the Polish Presidency of the Council of the EU today, Directorate General for Single Market and Industry (DG GROW) IP deputy director Kamil Kiljański emphasized that the EU’s SEP regulation proposal is only on a “timeout” and that eventually the Commission may be in a position to “renew the wedding vows” later down the line. Mr. Kiljański noted that one of several factors contributing to the proposal getting “stuck” in the first place was the shift in geopolitical circumstances: “The likelihood of following the Commission’s solution across the pond decreased [and while] in this constituency we think SEPs are the meaning of life, the college has to look at things that are happening both east and west” – noting that Ukraine has become another major priority.
Direct impact and wider ramifications: Mr. Kiljański’s statements clarified that the withdrawal has not completely been dropped – co-legislators (Parliament, Member States) have six months to extend an opinion. While the EC will give the final say, and the DG GROW deputy director was keen to remind audience members today that February’s decision is not final, his remarks stood in stark contrast to a rather critical European Patent Office Director of Patent Developments & IP Lab Michael Fröhlich. “The Commission’s intention to shelve the regulation is to be welcomed,” Mr. Fröhlich said. While it is too soon to say what the next six months will bring, some major stakeholders are clearly more keen for this “timeout” to become permanent.
Speaking on a panel this morning, Mr. Kiljański reminded audience members that the EC’s decision last month was “not a withdrawal but an intention to withdraw.” The decision is now in the hands of Member States and Parliament and, while at the end of the process, the EC will have the final say, it is politically important what the EU Council does too.
He noted that the EC’s decision is very much a “political decision” in response to the intention of the co-legislators. “That ties a little with the justification for withdrawal, which is that the progress was insufficient,” he said. Mr. Kiljański explained that the slow progress of the proposal was due to several factors, including that the package had six different regulations (one of which is now adopted and the other is much more advanced), and that there was a “lull” between the Spanish and Polish presidencies.
One major factor, too, he noted was that geopolitics have changed as well:
“The likelihood of following the EC’s solution across the pond, both being equal, decreased.”
Also, according to Mr. Kiljański, the EC had a massive exercise of efficiency because of what happened in Ukraine:
“This is not substantively related to the proposal but we have finite resources. In this constituency, we think SEPs are the meaning of life, but the college has to look at things that are happening both east and west. That’s also an element of thinking to do with the resources – because when the proposal is stuck, there is no point in agonizing over it when there is no solution.”
Speaking on that same panel, the EPO’s Michael Fröhlich praised the EC’s decision:
“It appears to be fully in line with the EU’s competitive compass, which made clear that robust patent protection is essential for progress and also emphasized the need to create a regulatory environment that is simple and less complex.”
While noting that there is much to be done to increase transparency and predictability – with the aim of making SEP licensing easier for everyone – Mr. Fröhlich said the EPO doesn’t believe the draft would have achieved these objectives. “They were in need of balance and many were not necessary,” he said.
In fact, the EPO director said this shelving will provide an opportunity to re-enforce the EU’s commitment to find and streamline patent protection and litigation as a “key driver of European competitiveness” and any future consideration “should and will necessarily have to include the [Unified Patent Court].” Commending the UPC’s success so far, he reminded the audience that this system was in response to demand by users who “knew this specialization was key to providing Europe-wide coherency.”
Later in the panel session, Yoshinobu Sato, Director of IP and the Japan Patent Office’s representative in Europe, gave a thorough presentation on the JPO’s new guide to SEP licensing. That panel, entitled “Policy and legislative developments related to SEPs in Europe, UK, US and Japan”, was moderated by University of Utah professor Jorge Contreras, and the remaining panelists included Christian Hannon, a senior patent attorney at the USPTO, Jamie Lewis, Head of Standard Essential Patents, IP and Competition Policy at the UK IPO and András Jókúti, Director of the Patent and Technology Law Division at WIPO. The conference, in the Polish capital of Warsaw, concludes tomorrow, March 7, 2025.