UK government publishes summary of responses to SEP consultation
In December 2021, the UK government launched its MS consultation and today published an executive summary of the responses it received.
As expected, a variety of viewpoints are on display, with comments that the system is unbalanced back and forth (an impressive physics-defying feat) as well as praise for its current balance. The IPO also clarified that it had received numerous proposals for change, including roles for SDOs, pools and regulators, as well as a potential tribunal to determine prices (recalling the discussion I chaired at the recent OxFirst conference on FRAND, when suggested by Microsoft).
There are also a variety of views on transparency, with an emphasis on increased transparency of comparable licensing agreements and tariffs paid. Understandably, implementers also focused on whether it was appropriate to charge different amounts to licensees in a similar situation, and there seems to be a slight tendency for the UK to be perceived as “friendly for people with MS”.
I would personally dispute that and say that the UK courts are generally fairly balanced, not to mention the heavy reliance on expert economic evidence in FRAND cases.
ASIs are also addressed, although views are again balanced on both sides, one suggestion being that using ASIs makes you a reluctant licensee (presumably a suggestion from a licensor) to align the UK on the German approach. (By the way, it would seem very unlikely that this will spread in the UK given the courts’ attitude towards will as an issue and the general belief that ASIs are appropriate in certain circumstances. ) For completeness, the question of where in the value chain to license is also discussed, with (as expected) strong opinions on both sides.
It will be interesting to see where we go next on this – what is clear is that the IPO has received a variety of views and they cover both sides of the debate on almost every issue. The IPO said it needs time to consider this, and proposed changes if any, before drawing conclusions, referring to 2023. That said, one can’t help but wonder whether it’s evidence of a discord that requires intervention, or a well-functioning system that needs to be left alone.
After all, if a settlement doesn’t leave anyone happy, isn’t that often taken as an indication that the balance is about right?
The IPO has invited comments on whether the ecosystem around Standard Essential Patents is working effectively and efficiently and strikes the right balance for all entities involved. The purpose is to help assess whether government intervention is necessary
There was…little consensus on the need for the government to intervene
We will report our findings to UK Ministers in 2023 and expect any significant policy intervention to be subject to consultation.