The recently published report from the EU expert group on patent aggregation gives an interesting snapshot of the current and anticipated trends in terms of patent markets from a diversity of primarily EU-based stakeholders perspective.
Corinne Le Buhan from IPStudies was invited to one of the hearings to bring the innovative SME point of view into the debate. The expert group must have had a hard time to deliver a consensus report and recommendations out of the hearings, but the result is quite comprehensive.
Here are the main recommendations out of the report:
1) For improving the framework conditions for patent markets:
1.1. The European Patent Office and the European Commission should explore the feasibility of requiring the registration of patent ownership and changes in ownership to increase the transparency in the patent market.
1.2. Patentees should be allowed to declare and encouraged to highlight their willingness to license out their patents either on an exclusive or non-exclusive basis.
1.3.The European Patent Office should aim to ensure that the high quality of European patents can be maintained in the future. While patent quality is important, measures to improve quality should be considered only if they are cost efficient and do not lead to a lengthening of the patent procedure.
1.4. Holders of standard-essential patents, who are under their obligation to offer licences on a FRAND basis, should retain the right to seek injunctions as well as damages against users who infringe the patents and who are unwilling to accept a licence on a FRAND basis.
1.5. Co-owners of IPR should agree that each joint owner can freely use the jointly made inventions and patents granted for them, and assign one of the owners with the responsibility and right to grant licences on behalf of the consortium.
1.6. The European Commission and Member States should (in consultation with intermediaries) consider supporting and promoting measures that would assist SMEs in developing and executing an IPR strategy and actively managing their IPR, particularly SMEs participating in EU or national RTD programmes.
2) Specific recommendations with regard to pools, funds and other types of intermediation:
2.1. The establishment with public finance of a patent pool or patent trading fund to serve multiple objectives should not be envisaged.
2.2. The European Commission (or Member States) should, in exceptional cases, consider supporting “mission-oriented” patent pools established specifically to advance or accelerate the development or deployment of solutions to social challenges and where there is a clear market failure, such as treatments for neglected diseases.
2.3. The European Commission and Member States should consider supporting the establishment of technology development funds in specific fields, to advance technological progress and to sustain Europe’s role as a global innovation leader.
2.4: The Commission would usefully explain in its Anti-trust guidance that substitutable patents may be included in pools if they are needed in practice by the users of the standard essential patents, and if the additional royalties for these patents are small in relation to those for the standard essential ones.
2.5: The Commission should make it clear that European competition law allows companies in standard-setting organisations that own standard essential patents to discuss royalty levels with other patent owners (and not only with licensees), after it has become clear which patents are likely to be technically essential, when this is necessary to ensure that the new standard is adopted quickly, even if there is no pool or plan for a pool.