Annexes to COM(2023)232 - Standard essential patents - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)232 - Standard essential patents. |
|---|---|
| document | COM(2023)232  |
| date | April 27, 2023 |
EUR million (to three decimal places)
| Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | TOTAL | |||||
| DG: <…….> | ||||||||||
| Human resources | ||||||||||
| Other administrative expenditure | ||||||||||
| TOTAL DG <…….> | Appropriations |
| TOTAL appropriations under HEADING 7 of the multiannual financial framework | (Total commitments = Total payments) |
EUR million (to three decimal places)
| Year N57 | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | TOTAL | ||||
| TOTAL appropriations under HEADINGS 1 to 7 of the multiannual financial framework | Commitments | ||||||||
| Payments |
3.2.2. Estimated output funded with operational appropriations
Commitment appropriations in EUR million (to three decimal places)
| Indicate objectives and outputs | Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | TOTAL | ||||||||||||
| OUTPUTS | ||||||||||||||||||
| Type58 | Average cost | No | Cost | No | Cost | No | Cost | No | Cost | No | Cost | No | Cost | No | Cost | Total No | Total cost | |
| SPECIFIC OBJECTIVE No 159… | ||||||||||||||||||
| - Output | ||||||||||||||||||
| - Output | ||||||||||||||||||
| - Output | ||||||||||||||||||
| Subtotal for specific objective No 1 | ||||||||||||||||||
| SPECIFIC OBJECTIVE No 2 ... | ||||||||||||||||||
| - Output | ||||||||||||||||||
| Subtotal for specific objective No 2 | ||||||||||||||||||
| TOTALS |
3.2.3. Summary of estimated impact on administrative appropriations
- The proposal/initiative does not require the use of appropriations of an administrative nature
- The proposal/initiative requires the use of appropriations of an administrative nature, as explained below:
EUR million (to three decimal places)
| Year N 60 | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | TOTAL |
| HEADING 7 of the multiannual financial framework | ||||||||
| Human resources | ||||||||
| Other administrative expenditure | ||||||||
| Subtotal HEADING 7 of the multiannual financial framework |
| Outside HEADING 761 of the multiannual financial framework | ||||||||
| Human resources | ||||||||
| Other expenditure of an administrative nature | ||||||||
| Subtotal outside HEADING 7 of the multiannual financial framework |
| TOTAL |
The appropriations required for human resources and other expenditure of an administrative nature will be met by appropriations from the DG that are already assigned to management of the action and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of budgetary constraints.
3.2.3.1. Estimated requirements of human resources
- The proposal/initiative does not require the use of human resources.
- The proposal/initiative requires the use of human resources, as explained below:
The table below presents an indicative number of FTEs that the EUIPO may need to use in order to implement the proposal.
| 2024* (implementation period) | 2025 (implementation period) | 2026 (operational period) | 2027 and subsequent (operational period) | |
| EUIPO AD/AST staff | 6 | 6 | 6 | 6 |
| EUIPO contractual staff | 6 | 6 | 24 | 4 |
| total | 12 | 12 | 30 | 10 |
*real date will depend on the adoption of the proposal by co-legislators
The high number of FTEs in the year three (first year of the system’s operation) is due to the expected registration of up to 72 000 patent families, while in the subsequent years the number of the registrations is expected to drop to around 10% of the initial registrations. The actual take-up of the new system is, however, uncertain – these are our estimations based on the impact assessment. It should be noted that the staff resources in the table above also include four FTEs in each year for operational activities, such as the operation of the Competence Centre, which will have the role of a back-office for FRAND determination processes (conciliations) and aggregate royalty processes.
Additionally, during the operational period EUIPO will outsource services such as essentiality checks and conciliations to external experts. We estimate that in the year three, around 82 FTEs of experts in the essentiality assessment will be necessary, going down to around eight FTEs of experts from the year four onwards. We also estimate that service of around two FTEs of conciliators will be required annually.
The table below presents an indicative cost of FTEs that EUIPO may need to use in order to implement the proposal.
EUR million (to three decimal places) in constant prices
| 2024* (implementation period) | 2025 (implementation period) | 2026 (operational period) | 2027 and subsequent (operational period) | |
| EUIPO AD/AST staff | 0.790 | 0.790 | 0.790 | |
| EUIPO contractual staff | 0.810 | 3.120 | 0.520 | |
| Total | 1.590 | 3.900 | 1.310 |
*real date will depend on the adoption of the proposal by co-legislators
Additionally, one-off IT expenditures are estimated at EUR 0.815 million, and annual IT maintenance expenditures at EUR 0.163 million.
An estimate for the remuneration of the outsourced experts is presented below.
EUR million (to three decimal places) in constant prices
| 2024*-2025 (implementation period) | 2026 (operational period) | 2027 and subsequent (operational period) | |
| External experts | 74.025 | 9.067 |
Detailed calculations and forecasts are presented in the impact assessment, annex A7.1.
Estimate to be expressed in full time equivalent units
| Year N | Year N+1 | Year N+2 | Year N+3 | Enter as many years as necessary to show the duration of the impact (see point 1.6) | |||||
| Establishment plan posts (officials and temporary staff) | |||||||||
| 20 01 02 01 (Headquarters and Commission’s Representation Offices) | |||||||||
| 20 01 02 03 (Delegations) | |||||||||
| 01 01 01 01 (Indirect research) | |||||||||
| 01 01 01 11 (Direct research) | |||||||||
| Other budget lines (specify) | |||||||||
| External staff (in Full Time Equivalent unit: FTE)62 | |||||||||
| 20 02 01 (AC, END, INT from the ‘global envelope’) | |||||||||
| 20 02 03 (AC, AL, END, INT and JPD in the delegations) | |||||||||
| XX 01 xx yy zz 63 | - at Headquarters | ||||||||
| - in Delegations | |||||||||
| 01 01 01 02 (AC, END, INT - Indirect research) | |||||||||
| 01 01 01 12 (AC, END, INT - Direct research) | |||||||||
| Other budget lines (specify) | |||||||||
| TOTAL |
The human resources required will be met by staff from the DG who are already assigned to management of the action and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of budgetary constraints.
Description of tasks to be carried out:
| Officials and temporary staff | |
| External staff |
3.2.4. Compatibility with the current multiannual financial framework
N/A, the proposal is managed by EUIPO and finance by fees
The proposal/initiative:
- can be fully financed through redeployment within the relevant heading of the Multiannual Financial Framework (MFF).
Explain what reprogramming is required, specifying the budget lines concerned and the corresponding amounts. Please provide an excel table in the case of major reprogramming.
- requires use of the unallocated margin under the relevant heading of the MFF and/or use of the special instruments as defined in the MFF Regulation.
Explain what is required, specifying the headings and budget lines concerned, the corresponding amounts, and the instruments proposed to be used.
- requires a revision of the MFF.
Explain what is required, specifying the headings and budget lines concerned and the corresponding amounts.
3.2.5. Third-party contributions
The proposal/initiative:
- does not provide for co-financing by third parties
- provides for the co-financing by third parties estimated below:
EUIPO will collect fees in order to cover all its costs as well as the remuneration of the external experts. The table below presents the estimated value of fees collected by the EUIPO.64
EUR million (to three decimal places) in constant prices
| 2024*-2025 (implementation period) | 2026 (operation period) | 2027 and subsequent (operation period) | |
| 78.329 | 10.782 |
3.3. Estimated impact on revenue
- The proposal/initiative has no financial impact on revenue.
- The proposal/initiative has the following financial impact:
- on own resources
- on other revenue
- please indicate, if the revenue is assigned to expenditure lines ◻
1European Telecommunications Standards Institute.
2Institute of Electrical and Electronics Engineers.
3In certain cases, a SEP holders can be an implementer and vice versa – in fact, many companies participating in standards development are vertically integrated and therefore fall under both categories. Thus, it is not fully accurate to divide the world of SEPs into two entirely separate groups – SEP holders and implementers. However, for ease of reference in this impact assessment, those terms will be used to refer to companies that own SEPs (i.e., SEP owner) and those that implement SEPs in their products (i.e., implementer).
4Communication on Setting out the EU approach to Standard Essential Patents, COM(2017)712 final, 29.11.2017.
5Council conclusions on the enforcement of Intellectual Property Rights, as approved by the Council (Internal Market, Industry, Research and Space) at its meeting on 12 March 2018
6Council conclusions on Intellectual property policy and the revision of the industrial designs system in the Union, as adopted at its meeting on 10 November 2020
7https://single-market-economy.ec.europa.eu/smes/sme-definition_en
8Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Making the most of the EU’s innovative potential An intellectual property action plan to support the EU’s recovery and resilience of 25 November 2020, COM(2020) 760 final.
9Council conclusions on intellectual property policy, as approved by the Council (Economic and Financial Affairs) at its meeting on 18 June 2021.
10European Parliament resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience (2021/2007(INI))
11COM(2022) 31 final, 2.2.2022, An EU Strategy on Standardisation. Communication on An EU Strategy on Standardisation - Setting global standards in support of a resilient, green and digital EU single market. COM(2022) 31 final. Brussels 02.02.2022.
12Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ C 11, 14.01.2011, pp. 1 (currently under review)
13Chapter 7, para 263
14Judgment of the United Kingdom’s Supreme Court of 26 August 2020, Unwired Planet v. Huawei, UKSC 2018/0214, [2020] UKSC 37, Decision of the United States District Court for the Central District of California, TCL v Ericsson, Case No 8:14-cv-00341-JVS-DFM with consent of both parties. Chinese Supreme Court’s ruling of 19 August 2021, OPPO v Sharp, Zui Gao Fa Zhi Min Xia Zhong No. 517, Order of the Wuhan Intermediate Court of 23 September 2020, Xiaomi v. Interdigital, (2020) E 01 Zhi Min Chu 169 No 1; Order of the Wuhan Intermediate Court, Samsung v Ericsson [2020], Case E 01 Zhi Min Chu No 743.
15Japanese Patent Office Guide to Licensing Negotiations Involving Standard Essential Patents; South Korean Guidelines on unfair exercise of Intellectual Property Rights; Singapore’s Competition & Consumers Commission Guidelines on the treatment of Intellectual Property Rights
16The United States of America withdrew its Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to F/RAND Commitments and concluded a Memorandum of Understanding with the WIPO Arbitration and Mediation Centre. The UK has launched a process in 2021 on SEPs and innovation, which is ongoing. India’s Department of Telecommunications is discussing a proposal to set up a Digicom Intellectual Property Management Board to facilitate IPR licensing and IP management in the telecommunication sector. China has consulted on the draft amendments to the implementing regulations of its Anti Monopoly Law. Japan’s Patent Office is revising its guidelines and METI launched a Study Group on Licensing Environment of SEPs.
17Judgment of the Court of justice of 16 July 2015, Huawei Technologies Co. Ltd v ZTE Corp. and ZTE Deutschland GmbH, C-170/13, ECLI:EU:C:2015:477.
18Harmonised by Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (‘IPRED’), OJ L 157, 30.4.2004, p. 45.
19Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - An EU Strategy on Standardisation; Setting global standards in support of a resilient, green and digital EU single market, 2.2.2022, COM(2022) 31 final.
20Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ C 11, 14.01.2011, pp. 1-72, CELEX: and CJEU case-law., in particular Huawei v. ZTE, Case C-170/13, EU:C:2015:477
21Judgment of the Court of Justice of 12 December 2006, Germany v. Parliament and Council, C‑380/03, EU:C:2006:772, para. 38 and the case-law cited, and judgment of the Court of Justice of 10 February 2009, Ireland v. Parliament and Council, C‑301/06, EU:C:2009:68, para. 64; see also, to that effect, judgment of the Court of Justice of 2 May 2006, United Kingdom v. Parliament and Council, C-217/04, EU:C:2006:279, paras. 60 to 64.
22Court of Appeal of The Hague, judgment of 2 July 2019, Philips v Wiko, Case number : C/09/511922/HA ZA 16-623; Hoge Raad, Judgment of 25 February 2022, Wiko v Philips, Nummer 19/04503, ECLI:NL:HR:2022:294; District Court The Hague, Judgment of 15 December 2021, Vestel v Access Advance, ECLI:NL:RBDHA:2021:14372.
23Paris Court, order of the pre-trial judge of 6 February 2020, TCT v Philips, RG 19/02085 – Portalis 352J-W-B7D-CPCIX; TJ Paris, 3.3, judgment of 7 December 2021, Xiaomi v Philips and ETSI, RG 20/12558.
24German Federal Court of Justice (‘Bundesgerichtshof – BGH’), judgement of 5 May 2020, Sisvel v. Haier, KZR 36/17, and German Federal Court of Justice, judgment of 24 November 2020, FRAND-Einwand II, KZR 35/17; Order of 24 June 2021, Nokia Technologies v Daimler, C-182/21, EU:C:2021:575 (request for a preliminary ruling from the Landgericht Düsseldorf, removed from the Register).
25See webpage https://ec.europa.eu/growth/content/webinar-series-standard-essential-patents_en
26Judgment of the Court of Justice of 13 December 1979, Hauer v. Land Rheinland-Pfalz, C-44/79, EU:C:1979:290, para. 32; judgment of the Court of Justice of 11 July 1989, Hermann Schräder HS Kraftfutter GmbH & Co. KG v. Hauptzollamt Gronau, C-256/87, EU:C:1999:332, para. 15, and judgment of the Court of Justice of 13 July 1989, Hubert Wachauf v. Bundesamt für Ernährung und Forstwirtschaft, C-5/88, ECLI:EU:C:1989:321, paras. 17 and 18.
27The conciliation procedure follows the conditions for mandatory recourse to alternative dispute settlement procedures as a condition for the admissibility of an action before the courts, as outlined in the judgment of the Court of Justice of 18 March 2010, Rosalba Alassini v Telecom Italia SpA (C-317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08), Joined cases C-317/08, C-318/08, C-319/08 and C-320/08, ECLI:EU:C:2010:146, taking into account the specificities of SEP licensing.
28see footnote above.
29OJ C , , p. .
30OJ C , , p. .
31Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Making the most of the EU’s innovative potential An intellectual property action plan to support the EU’s recovery and resilience of 25 November 2020, COM(2020) 760 final.
32OJ L 124 of 20.05.2003, p. 36.
33Council conclusions on intellectual property policy, as approved by the Council (Economic and Financial Affairs) at its meeting on 18 June 2021.
34European Parliament resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience (2021/2007(INI)).
35Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12.)
36Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ C 11, 14.01.2011, pp. 1 (currently under review)
37Judgment of the Court of Justice of 16 July 2015, Huawei Technologies Co. Ltd v ZTE Corp. and ZTE Deutschland GmbH, C-170/13, ECLI:EU:C:2015:477
38DIRECTIVE 2004/48/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45.)
39Judgment of the Court of Justice of 13 December 1979, Hauer v. Land Rheinland-Pfalz, C-44/79, EU:C:1979:290, para. 32; judgment of the Court of Justice of 11 July 1989, Hermann Schräder HS Kraftfutter GmbH & Co. KG v. Hauptzollamt Gronau, C-256/87, EU:C:1999:332, para. 15, and judgment of the Court of Justice of 13 July 1989, Hubert Wachauf v. Bundesamt für Ernährung und Forstwirtschaft, C-5/88, EU:C:1989:321, paras. 17 and 18.
40The conciliation procedure follows the conditions for mandatory recourse to alternative dispute settlement procedures as a condition for the admissibility of an action before the courts, as outlined in the CJEU judgments; Joint Cases C‑317/08 to C‑320/08 Alassini and Others of 18 March 2010, and Case C‑75/16 Menini and Rampanelli v. Banco Popolare Società Cooperativa of 14 June 2017, taking into account the specificities of SEP licensing.
41Judgment of the Court of Justice of 18 March 2010, Rosalba Alassini v Telecom Italia SpA (C-317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08), Joined cases C-317/08, C-318/08, C-319/08 and C-320/08, EU:C:2010:146, and judgement of the Court of Justice of 14 June 2017,Livio Menini and Maria Antonia Rampanelli v Banco Popolare – Società Cooperativa, C‑75/16, EU:C:2017:457
42Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ C 11, 14.01.2011, pp. 1 (currently under review)
43Communication on Setting out the EU approach to Standard Essential Patents, COM(2017)712 final, 29.11.2017.
44OJ L 123, 12.5.2016, p. 1.
45Regulation (EU) No 182/2011 of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13.)
46Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ L 154, 16.6.2017, p. 1.)
47Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39.)
48Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12.).
49As referred to in Article 58(2)(a) or (b) of the Financial Regulation.
50Details of budget implementation methods and references to the Financial Regulation may be found on the BUDGpedia site: https://myintracomm.ec.europa.eu/corp/budget/financial-rules/budget-implementation/Pages/implementation-methods.aspx
51Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations.
52EFTA: European Free Trade Association.
53Candidate countries and, where applicable, potential candidates from the Western Balkans.
54Year N is the year in which implementation of the proposal/initiative starts. Please replace "N" by the expected first year of implementation (for instance: 2021). The same for the following years.
55According to the official budget nomenclature.
56Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.
57Year N is the year in which implementation of the proposal/initiative starts. Please replace "N" by the expected first year of implementation (for instance: 2021). The same for the following years.
58Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.).
59As described in point 1.4.2. ‘Specific objective(s)…’
60Year N is the year in which implementation of the proposal/initiative starts. Please replace "N" by the expected first year of implementation (for instance: 2021). The same for the following years.
61Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.
62AC= Contract Staff; AL = Local Staff; END= Seconded National Expert; INT = agency staff; JPD= Junior Professionals in Delegations.
63Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines).
64Fees also cover the IT maintenance cost and a share of one-off costs (expected to be recovered during ten years).
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