What changed between the plenary report and the adopted text

Removed:Article 3 – paragraph 2 – point h: (h) set up and maintain a SEP Licensing Assistance Hub for SMEs and start-ups and provide training, support and general advice on SEPs to SMEs and start-ups in accordance with Article 61;

Added:(a) rules providing for enhanced transparency with regard to information necessary for SEP licensing;

Removed:Article 3 – paragraph 2 – point j: (j) establish a dedicated working group on conditions for licensing SEPs in the value chain and raise awareness about SEP licensing.

Added:(b) rules on the registration of SEPs;

Removed:Article 4 – paragraph 1: 1. A Union register for SEPs ('the register') shall be set up and maintained in an electronic format by the competence centre.

Added:(c) a procedure to evaluate the essentiality of registered SEPs;

Removed:Article 4 – paragraph 2: deleted

Added:(d) a procedure for the amicable settlement of disputes related to fair, reasonable and non-discriminatory nature of terms and conditions (‘FRAND determination’);

Removed:Article 4 – paragraph 3 – point b: (b) identification of registered SEPs, including the country of registration and patent number;

Added:(e) competences for the EUIPO for the fulfilment of the tasks set out in this Regulation.

Removed:Article 4 – paragraph 3 – point c: (c) the standard version, the technical specification and the sections of the technical specification for which the patent is considered essential;

Added:2. This Regulation shall apply to patents that are in force in one or more Member States and that a SEP holder claims to be essential to a standard that has been published by a standard development organisation, to whichafter entry into force of this Regulation regardless of whether the SEP holder has or has not made a commitment to license its SEPs on fair, reasonable and non-discriminatory (FRAND) terms and conditions and that is not subject to a royalty-free intellectual property policy,.

Removed:Article 4 – paragraph 3 – point f: (f) if the SEP holder is an affiliate, subsidiary or part of one or more companies, the name, address and contact details of the parent company;

Added:(a) after the entry into force of this Regulation, with the exceptions provided in paragraph 3;

Removed:Article 4 – paragraph 3 – point h: (h) the existence of any publicly available standard terms and conditions, including SEP holder’s royalty, royalty-free and discount policies;

Added:(b) before the entry into force of this Regulation, in accordance with Article 66. [Am. 54]

Removed:Article 4 – paragraph 3 – point i: (i) the existence of any publicly available standard terms and conditions for SEP licensing to SMEs and start-ups;

Added:3. Articles 17 and 18 and Article 34(1) shall not apply to SEPs to the extent that they are implemented for use caseswhere there is sufficient evidence that SEP licensing negotiations on FRAND terms and conditions do not give rise to significant difficulties or inefficiencies affecting the functioning of the internal market as regards identified by the Commission in accordance with paragraph 4implementations of certain standards or parts thereof. Such implementations, standards and parts thereof shall be identified pursuant to the procedure set out in Article 65b. [Am. 55]

Removed:Article 4 – paragraph 3 – point j: (j) availability for licensing through patent pools and the name of the respective patent pool, where applicable;

Added:4. Without prejudice to paragraph 2 of this Article, this Regulation shall also apply to patents in force in one or more Member States and that a SEP holder claims to be essential to a standard published by a standard development organisation before the entry into force of this Regulation, where there is sufficient evidence that, as regards identified use cases of certain standards or parts thereof, SEP licensing negotiations on FRAND terms do not give risethe functioning of the internal market is severely distorted due to significant difficulties or inefficiencies affecting the functioning of the internal market, the Commission shall, after an appropriate consultation process, by means of a delegated act pursuant to Article 67, establish a list of such use casesin the licensing of SEPs for certain implementations, standards and parts thereof. Such implementations, standards orand parts thereof, for the purposes of paragraph 3 shall be identified pursuant to the procedure set out in Article 65c. [Am. 56]

Removed:Article 4 – paragraph 4 – point c: (c) any information on whether an essentiality check or peer evaluation have been performed and, unless not possible due to contractual limits agreed upon by the parties, also a reference to the outcome of the essentiality check;

Added:5. This Regulation shall not apply to holders of SEP in force in one or more Member StatesSEPs that are subject to a royalty-free intellectual property policy, except when such SEPs are part of a portfolio of patents licensed for royalties. [Am. 57]

Removed:Article 4 – paragraph 4 – point d: (d) information on whether the SEP is expired, invalidated or deemed unenforceable by a final judgment of a competent court of a Member State;

Added:6. This Regulation shall not apply to claims of invalidity or claims of infringement unrelated to the implementation of a standard notified under this Regulation.

Removed:Article 4 – paragraph 4 – point f: (f) date of publication of information pursuant to Article 19(1);

Added:7. This Regulation is without prejudice to the application of Articles 101 and 102 TFEU or to the application of corresponding national competition law rules.

Removed:Article 4 – paragraph 4 a (new): 4a. Prior to registering their patents, SEP holders may voluntarily submit their SEPs for essentiality checks to the competence centre.

Added:Article 2 Definitions

Removed:Article 5 – paragraph 1: 1. The competence centre shall set up and maintain an electronic database for SEPs.

Added:For the purposes of this Regulation, the following definitions shall apply:

Removed:Article 5 – paragraph 2 – point b: (b) publicly available standard terms and conditions, including SEP holder’s royalty, royalty-free and discount policies pursuant to Article 7, first paragraph, point (b), if available;

Added:(1) ‘standard essential patent’ or ‘SEP’ means any patent that a SEP holder claims to be is essential to a standard; [Am. 58]

Removed:Article 5 – paragraph 2 – point c: (c) publicly available standard terms and conditions for SEP licensing to SMEs, and start-ups pursuant to Article 62(1), including royalty-free access, if available;

Added:(2) ‘essential to a standard’ means that the patent contains at least one claim for which it is not possible on technical grounds to make or use an implementation or method which complies with a standard, including options therein, without infringing the patent under the current state of the art and normal technical practice;

Removed:Article 5 – paragraph 2 – point d: (d) information regarding known products, processes, services or systems and implementations and, where available, any known market data pursuant to Article 7, first paragraph, point (a);

Added:(3) (‘standard’ means a technical specification, adopted by a standard development organisation, for repeated or continuous application, with which compliance is not compulsory; [Am. 59]

Removed:Article 5 – paragraph 3: 3. Access to the information pursuant to paragraph (2), points (f), (h), (i), (j) and (k) shall be available to any third party subject to registration with the competence centre and may be subject to the payment of a reasonable fee, as set out in Article 63.

Added:(4) ‘technical specification’ means a document that prescribes technical requirements to be fulfilled by a product, process, service or system as defined in Article 2 of Regulation (EU) No 1025/2012 of the European Parliament and of the Council;

Removed:Article 5 – paragraph 4: 4. However, public authorities, including courts, shall have full access to the information in the database referred to in paragraph (2) free of charge subject to registration with the competence centre. Academic institutions may also request access to the information free of charge solely for the purpose of conducting academic tasks.

Added:(5) ‘standard development organisation’ means any standardising body that is not a private industrial association developing proprietary technical specifications, that develops technical or quality requirements or recommendations for products, production processes, services or methods;

Removed:Article 6 – paragraph 1: 1. When a party requests that data and documents of the database be kept confidential, that party shall provide a reasoned statement justifying this confidentiality and, where reasonably possible, a non-confidential version of the information submitted in confidence in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. The competence centre may disclose that non-confidential version.

Added:(5a) ‘implementation’ means a specific scenario where a particular standardised technology or method is applied to fulfil a given purpose or function of a product, process, service or system, irrespective of the level in the value chain; [Am. 60]

Removed:Article 6 – paragraph 5: 5. Upon request, the competence centre shall issue registration certificates or certified copies of the data and documents in the register or the database. The registration certificates and certified copies may be subject to the payment of a reasonable fee.

Added:(6) ‘SEP holder’ means an owner of a SEP or a person holding an exclusive licence for a SEP in one ofor more Member States; [Am. 61]

Removed:Article 7 – paragraph 1 – point a: (a) information as regards the products, processes, services or systems in which the subject-matter of the SEP may be incorporated or to which it is intended to be applied, for all existing or potential implementations of a standard and, where available, any market data, to the extent such information is known to the SEP holder.

Added:(7) ‘implementer’ means a natural or legal person that implements, or intends to implement, a standard in a product, process, service or system on the Union market; [Am. 62]

Removed:Article 7 – paragraph 1 – point b: (b) where available, its standard terms and conditions for SEP licensing, including its royalty, royalty-free and discount policies, within 7 months from the opening of the registration for the relevant standard and implementation by the competence centre.

Added:(8) ‘FRAND terms and conditions’ means fair, reasonable and non-discriminatory terms and conditions of licensing SEPs;

Removed:Article 8 – title: Information on essentiality

Added:(9) ‘FRAND determination’ means a structured procedure for the determination of the FRAND terms and conditions of a SEP licence;

Removed:Article 8 – paragraph 1 – point a: (a) a final decision on essentiality for a registered SEP made by a competent court of a Member State within 2 months after the decision has become final;

Added:(10) ‘aggregate royalty’ means the maximumtotal amount of royalty formoney paid or required to be paid to license all patents essential to a standard; [Am. 63]

Removed:Article 8 – paragraph 1 – point b: (b) any other essentiality check by an independent evaluator in the context of, for example, a patent pool, identifying the SEP registration number, the identity of the patent pool and its administrator, and the evaluator.

Added:(10a) ‘royalty-free’ means available without payment of a royalty or without an agreement for any other consideration, whether monetary or non-monetary; [Am. 64]

Removed:Article 9 – paragraph 1 – introductory part: 1. Patent pools shall publish on their websites at least the following accurate and updated information and inform the competence centre thereof:

Added:(11) ‘patent pool’ means an entity, created by an agreement between two or more SEP holders or a consortium in which multiple SEP holders agree to license one or more of their patents to one anotherSEPs to each other or to third parties; [Am. 65]

Removed:Article 9 – paragraph 1 – point g: (g) list of products, services and processes that may be licensed through the patent pool;

Added:(12) ‘peer evaluation’ means a process for the re-examination of the preliminary results of essentiality checks by evaluators other that those that carried out the original essentiality check;

Removed:Article 9 – paragraph 1 – point h: (h) royalties, royalty-free and discount policies per implementation including information on royalty calculation per SEP owner in the pool and aggregate royalty rate, if applicable;

Added:(13) ‘claim chart’ means a presentation ofdocument identifying correspondence between the elements (features) of one patent claim and at least one requirement of a standard or recommendation of a standard; [Am. 66]