ETSI Seminar 2010 Legal Considerations ETSI Seminar Sophia

ETSI Seminar 2010 « Legal Considerations » ETSI Seminar Sophia Antipolis, 15 -17 June 2010 SEM 21 -02 Erik Jansen, LL. M. ETSI Legal Director Copyright © ETSI 2010. All rights reserved.

World Class Standards Legal considerations ETSI members should be aware that several legal considerations need to be taken into account while participating in the activities of ETSI. - ETSI as an association and ETSI members are subject to different national and supranational laws. - The bodies of ETSI and the ETSI members are bound by the ETSI Directives. Focus in this Seminar: I. ETSI IPR Policy II. ETSI Guidelines for Antitrust Compliance ETSI Seminar Sophia Antipolis, 15– 17 June 2010 2

World Class Standards I. ETSI IPR Policy ETSI Seminar Sophia Antipolis, 15– 17 June 2010 3

World Class Standards Where do I find the ETSI IPR Policy ? The ETSI IPR Policy (Annex 6 of the ETSI Rules of Procedure) q Rights and obligations of Members, Technical Body Chairmen and the ETSI Secretariat in respect of IPRs q Definitions q IPR Information Statement and Licensing Declaration Forms http: //www. etsi. org/Web. Site/document/Legal/ETSI_IPR-Policy. pdf The ETSI guide on IPRs q Background/ Guidance on the interpretation of the rights and obligations deriving from the IPR Policy q Explanation on the duties of Members, Technical Body Chairmen and the ETSI Secretariat in respect of IPRs q Where to find information on essential IPRs q Other ETSI IPR Policy matters http: //www. etsi. org/Web. Site/document/Legal/ETSI_Guide_on_IPRs. pdf ETSI Seminar Sophia Antipolis, 15– 17 June 2010 4

World Class Standards Tension q Inherent tense relationship between IPRs and Standards: Ø Standards are intended for free, collective use Ø IPRs are destined for private, exclusive use q Tension may lead to conflicts whenever the technical content of a standard falls within the scope of an IPR (for instance of a patent as defined by its claims) Ø Essential IPR = implementation of a standard is requiring the use of protected technology ETSI Seminar Sophia Antipolis, 15– 17 June 2010 5

World Class Standards CHALLENGE q Solve the tension between IPRs and standards by striking the proper balance between all the different interests involved q Interests involved: Ø IPR owner: wishes to exploit its IPR commercially Ø third parties: wish to make and sell standard compliant products under reasonable conditions Ø public use/end-users: seek the widest possible choice among affordable and interoperable products Ø SDO: avoid wasting effort on the elaboration of a Deliverable which could subsequently be blocked by an essential IPR ETSI Seminar Sophia Antipolis, 15– 17 June 2010 6

World Class Standards MAIN CHARACTERISTICS q No technical reservation for the inclusion of IPRs in standards q Early identification and disclosure of essential IPRs q Ensuring the future applicability of the standards in full respect of the rights of the essential IPR owner by requesting irrevocable FRAND licensing undertaking (FRAND = fair, reasonable and nondiscriminatory) q No involvement of ETSI in any legal and/or commercial discussion on IPR matters (i. e. terms and conditions of the licenses to be determined by the parties of the agreement only) ETSI Seminar Sophia Antipolis, 15– 17 June 2010 7

World Class Standards DISCLOSURE OF ESSENTIAL IPRs Ø Members q Duty to disclose in a timely fashion q No requirement to conduct IPR searches Ø ETSI q Publication of disclosed “essential” IPR in the ETSI IPR Database Users/Implementers of Standards can access information on essential IPRs at http: //webapp. etsi. org/IPR/home. asp q No checking of essentiality of the disclosed IPR q Call for IPR by chairmen of technical bodies ETSI Seminar Sophia Antipolis, 15– 17 June 2010 8

World Class Standards FRAND-Undertaking q FRAND = Fair, Reasonable and Non-Discriminatory q ETSI requesting essential IPR owner to give irrevocable undertaking to grant irrevocable licences under FRAND terms and conditions q IPR owner may give or refuse FRAND licensing undertaking q ETSI has got a clear defined procedure in case of non-availability of licenses, e. g. Article 8 of the ETSI IPR Policy q Ts&Cs of the licenses to be determined by the parties of the agreement and outside ETSI Seminar Sophia Antipolis, 15– 17 June 2010 9

World Class Standards Overview Simple participation in the work of ETSI Own IPR which might be essential if proposal adopted Any knowledge of other member/ non-member IPR which might be essential if proposal adopted Inform ETSI in a timely fashion Submitting an own technical proposal to ETSI Own IPR which might be essential if proposal adopted Draw ETSI’s attention on a bona fide basis Immediate irr. FRAND-undertaking by IPR owner / request by ETSI to give irr. FRAND-undertaking. Yes No Information reflected in IPR Database http: //webapp. etsi. org/IPR/home. asp Initiate procedure of non-availability (Clause 8 IPR Policy) ETSI Seminar Sophia Antipolis, 15– 17 June 2010 10

World Class Standards EX ANTE DISCLOSURE OF LICENSING TERMS = mechanism about submitting anticipated licensing terms for a given standard draft before the contribution becomes part of a standard q How are ex ante disclosures working in ETSI: Ø Ex ante disclosure is fully voluntary; i. e. • no obligation to disclose licensing terms of essential IPRs • lack of disclosure is not creating any implications • Disclosure of licensing terms is left to the usual free market mechanisms Ø Appropriate safeguards • New ETSI Antitrust Guidelines • ETSI is not involved to a large extent in the disclosure of licensing terms • No discussion/negotiation of specific licensing terms within ETSI • ETSI is not responsible for determining whether the licensing terms disclosed ex ante are FRAND ETSI Seminar Sophia Antipolis, 15– 17 June 2010 11

World Class Standards CONCLUSIONS q ETSI IPR Policy is fairly balancing all the interests involved q ETSI IPR Policy is one of the key elements for the success of ETSI’s globally-applicable standards Ø allowing Members to fully reserve their IPRs was beneficial to the drafting of excellent and high-quality standards Ø incentive for high technology companies to participate in the standardization process q ETSI will continue to lead the debate on IPRs and Standards ETSI Seminar Sophia-Antipolis, 15– 17 June 2010 12

World Class Standards II. ETSI Guidelines for Antitrust Compliance ETSI Seminar Sophia Antipolis, 15– 17 June 2010 13

World Class Standards Guidelines on Antitrust q What is competition law? It is the law ensuring that: Ø barriers to trade are not errected Ø effective competition in a market is preserved Ø efficiency, innovation, [lower] free regulation of prices are encouraged q What are the possible implications for ETSI and its Members? Anti-competitive behaviour will be considered unenforceable and the competition authorities can impose significant fines with regards to such behaviour. In addittion, national courts can impose damages against the infringer of competition laws. ETSI Seminar Sophia Antipolis, 15– 17 June 2010 14

World Class Standards Guidelines on Antitrust q How to avoid anti-competitive behaviour in ETSI? Ø Read the ETSI Guidelines for Antitrust Compliance and comply with them. http: //www. etsi. org/Web. Site/document/Legal/ETSI_Guidelines_for_ Antitrust_Compliance. pdf Ø In case of doubt, the assistance of legal counsel experienced in competition law matters shall be sought before proceeding. ETSI Seminar Sophia Antipolis, 15– 17 June 2010 15

Thank you for your attention Legal@etsi. org Erik Jansen, LL. M. ETSI Legal Director ETSI Seminar Sophia Antipolis, 15– 17 June 2010 SEM 21 -02 Copyright © ETSI 2010. All rights reserved