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European Commission withdraws SEP regulation

On 11 February, the European Commission withdrew proposals for regulating Standard Essential Patents (SEPs), citing “no foreseeable agreement”.

Among 35 initiatives, other notable withdrawals are the AI Liability Directive and the ePrivacy Regulation, write lawyers Charleen O'Keeffe and Olivia Heron of William Fry.

The European Commission unveiled its proposed SEP Regulation in April 2023, in response to concerns about a significant lack of transparency on  SEPs.

The regulation was proposed to promote the harmonisation of patent law across the European Union by creating a balanced framework to foster innovation within member states.

The proposed SEP regulation's key features included establishing a SEP register, a mechanism for SEP holders and implementers to request a recommendation on aggregate royalties, and a "competence centre".

Opposition and withdrawal

The proposed SEP regulation has faced much controversy since its creation.

Major SEP holders, including Nokia and Ericsson, along with several judges in the Unified Patent Court, opposed the European Commission's proposal on various grounds.

A key point of criticism was the suggestion that many issues would fall under the jurisdiction of the European Union Intellectual Property Office (EUIPO), an entity primarily focused on copyright and trademark matters.

In a move likely to be welcomed by SEP owners, the European Commission has conceded that the proposed  regulation is unworkable, citing the reason for withdrawal as "no foreseeable agreement".

The next step will involve consideration of whether to propose a new regulation or adopt a different approach entirely.