What changed between the draft committee report and the plenary report

Added:Recital 23: (23) A SEP holder may also request the modification of a SEP registration. An interested stakeholder may also request the modification of a SEP registration, if it can demonstrate that the registration is inaccurate based on a definitive decision by a public authority. A SEP can only be removed from the register at the request of the SEP holder, if the patent is expired, was invalidated or found non-essential by a final decision or ruling of a competent court of a Member State or found non-essential under this Regulation. To ensure transparency, a record of any modifications to the SEP registration should be made publicly available.

Added:Recital 23 a (new): (23a) It is necessary to ensure that the registration and the obligations provided for in this Regulation are not circumvented by removing a SEP from the register. When an evaluator finds a claimed SEP non-essential, only the SEP holder can request its removal from the register and only after the annual sampling process has been completed and the proportion of true SEPs from the sample has been established and published.

Added:Recital 24: (24) To further ensure the quality of the register and avoid over-registration, essentiality checks should also be conducted randomly by independent and impartial evaluators selected according to objective criteria to be determined by the Commission. Only one SEP from the same patent family should be checked for essentiality.

Added:Recital 26: (26) SEP holders may voluntarily submit their SEPs for essentiality checks to the competence centre prior to registering their patents. After the registration, SEP holders or implementers may also designate annually up to 100 registered SEPs for essentiality checks. If the pre-selected SEPs are confirmed essential, the SEP holders may use this information in negotiations and as evidence in courts, without prejudicing the right of an implementer to challenge the essentiality of a registered SEP in court. The selected SEPs would have no bearing on the sampling process as the sample should be selected from all registered SEPs of each SEP holder. If a preselected SEP and a SEP selected for the sample set are the same, only one essentiality check should be done. Essentiality checks should not be repeated on SEPs from the same patent family.

Added:Recital 27: (27) Assessments of essentiality of SEPs conducted by an independent entity prior to the entry into force of the Regulation, for example through patent pools, as well as essentiality determinations by judicial authorities should be indicated in the register. Those SEPs should not be re-checked for essentiality after the relevant evidence supporting the information in the register is provided to the competence centre unless the evaluator has objective reasons to believe, based on sufficient evidence, that the prior essentiality check was inaccurate. SEP holders or patent pools should also be able to conduct the assessment of essentiality of SEPs after the entry into force of this Regulation.

Added:Recital 29: (29) The competence centre would publish the results of the essentiality checks, whether positive or negative, in the register and the database. The results of the essentiality checks would not be legally binding. Thus, it should be possible to address any subsequent disputes with regard to essentiality to the competent court. The results from the essentiality checks, whether requested by a SEP holder or based on a sample, may, however, be used for the purpose of demonstrating essentiality of those SEPs or other relevant criteria in negotiations, in patent pools and in court.

Added:Recital 30: deleted

Added:Recital 31: (31) The purpose of the FRAND commitment is to facilitate adoption and use of the standard by making SEPs available to implementers on fair, reasonable and non-discriminatory terms and to provide the SEP holder a fair and reasonable return for its innovation. Thus, the ultimate goal of enforcement actions by SEP holders or actions brought by implementers based on a SEP holder’s refusal to license should be to conclude a FRAND licence agreement. The main objective of the Regulation in this regard is to facilitate the negotiations and out of court dispute resolution that can benefit both parties. Ensuring access to swift, fair and cost-efficient ways of resolving disputes on FRAND terms and conditions should benefit SEP holders and implementers alike. As such, a properly functioning out-of-court dispute resolution mechanism to determine FRAND terms (FRAND determination) may offer significant benefits for all parties. A party may request a FRAND determination in order to demonstrate that its offer is FRAND or to provide a security, when they engage in good faith.

Added:Recital 32: (32) The FRAND determination should simplify and speed up negotiations concerning FRAND terms and conditions and reduce transaction costs for all stakeholders. The EUIPO should administer the procedure. The competence centre should create a roster of conciliators that satisfy established competence and independence criteria, as well as a repository of non-confidential reports (the confidential version of the reports will be accessible only by the parties and the conciliators). The conciliators should be neutral and impartial persons with extensive experience in dispute resolution and substantial understanding of the economics of licensing on FRAND terms and conditions. There should be rules and procedures defining conflicts of interests and mechanisms for addressing any such conflicts that might arise.

Added:Recital 33: (33) In case one or more parties initiate a FRAND determination, it should be a mandatory step before a SEP holder would be able to initiate patent infringement proceedings or an implementer could request a determination or assessment of FRAND terms and conditions concerning a SEP before a competent court of a Member State. However, the obligation to initiate FRAND determination before the relevant court proceedings should not be required for SEPs covering those implementations of standards for which the Commission establishes that there are no significant difficulties or inefficiencies in licensing on FRAND terms.

Added:Recital 34: (34) Where a party does not reply to the FRAND determination request, the other party should be able to request either the termination or the unilateral continuation of the FRAND determination. Such a party should not be exposed to litigation during the time of the FRAND determination. At the same time, the FRAND determination should be an effective procedure for the parties to meet on neutral ground, such as before a panel of conciliators and reach agreement before litigation or to obtain a determination to be used in further proceedings. Therefore, the party or parties that duly engage in the procedure should be able to benefit from its completion.

Recital 35: (35) The obligation to initiate FRAND determination should not be detrimental to the effective protection of the parties’ rights. The parties should be able to request a provisional injunction of a financial nature before the competent court. In a situation where a FRAND commitment has been given by the relevant SEP holder, provisional injunctions of an adequate and proportionate financial nature should provide the necessary judicial protection to the SEP holder who has agreed to license its SEP on FRAND terms, while the implementer should be able to contest the level of FRAND royalties or raise a defence of lack of essentiality or of invalidity of the SEP. In those national systems that require the initiation of the proceedings on the merits of the case as a condition to request the interim measures of a financial nature, it should be possible to initiate such proceedings, but the parties should request that the case be suspended during the FRAND determination. When determining what level of the provisional injunction of financial nature is to be deemed adequate in a given case, account should be taken, inter alia, of the economic capacity of the applicant and the potential effects for the effectiveness of the measures applied for, in particular for SMEs, also in order to prevent the abusive use of such measures. It should also be clarified that once the FRAND determination is terminated, the whole range of measures, including provisional, precautionary and corrective measur…

Change 2

Removed:Recital 43: (43) The FRAND determination is also consistent with the right to an effective remedy and to access to justice as laid down in Article 47 of the Charter of Fundamental Rights of the European Union as the implementer and the SEP holder fully retain that right. In case of failure to register within the prescribed time limit, the exclusion of the right to effective enforcement is limited and necessary and meets objectives of general interest. As confirmed by the CJEU41, the provision of a mandatory dispute resolution as a precondition to access to competent courts of Member States is deemed to be compatible with the principle of effective judicial protection. The FRAND determination follows the conditions for mandatory dispute resolution outlined in the CJEU judgments, taking into account the particular characteristics of SEP licensing. The FRAND determination procedure allows also a deposit of a bond by the alleged infringer as a provisional injunction of a financial nature, which can be requested in order to avoid seriously restricting the alleged infringer’s activity and ensuring that the other party receives the corresponding sum in the event of a claim for damages. Moreover, the FRAND determination does not in any respect impair an SEP holder’s ability to recover, in subsequent court proceedings, compensation for an infringement that occurred during the FRAND determination. / 41 Judgment of the Court of Justice of 18 March 2010, Rosalba Alassini v Telecom Italia SpA (C-317/…

Added:Recital 36: (36) When the parties enter into the FRAND determination, they should select a panel of conciliators for the FRAND determination from the roster. In case of disagreement, the competence centre would select the members of the panel of conciliators. The FRAND determination should be concluded within 9 months. This time would be necessary for a procedure that ensures that the rights of the parties are respected and at the same time is sufficiently swift to avoid delays in concluding licences. Parties may settle at any time during the process, which results in the termination of the FRAND determination.

Removed:Recital 45 a (new): (45a) In order to avoid a possible negative impact for European companies that engage and compete successfully as regards the development of global technologies through standardisation, the Commission should evaluate the impact that the essentiality check system, the aggregate royalties determination and the FRAND determination system have on the competitiveness of Union SEP holders on a global level. Based on the outcome of that evaluation, the Commission should, where necessary, present a legislative proposal in order to adapt the systems.

Added:Recital 37: (37) Upon appointment, the conciliation centre should refer the FRAND determination to the panel of conciliators, who should examine whether the request contains the necessary information, and communicate the schedule of procedure to the parties or the party requesting the continuations of the FRAND determination.

Removed:Recital 46: (46) SMEs may be involved in SEP licensing both as SEP holders and SEP implementers. While there are currently a few SME SEP holders, the efficiencies produced with this Regulation are likely to facilitate the licensing of their SEP. Additional conditions are necessary to relieve the cost burden on such SMEs such as reduced administration fees and potentially reduced fees for essentiality checks and conciliation in addition to free support and trainings. The SEPs of micro and small enterprises should not be the subject of sampling for essentiality check, but they should be able to propose SEPs for essentiality checks if they wish to. SME implementers should likewise benefit from reduced access fees and free support and trainings. SEP holders should be encouraged to incentivise licensing by SMEs through low volume discounts or exemptions from FRAND royalties. Finally, MSMEs should benefit from a one-stop shop being set up by the competence centre which identifies relevant licensees and licensors for the MSME and advises them, free of charge, on SEPs. Patent assertion entities should not benefit from the exceptions and help from the competence centre provided for in this Regulation.

Added:Recital 38: (38) The panel of conciliators should examine the parties’ submissions and suggestions for the determination of FRAND terms and conditions, and consider the relevant negotiation steps, among other relevant circumstances. The panel of conciliators, upon its own initiative or the request of a party, should be able to require the parties to submit evidence it deems necessary for the fulfilment of its task. It should also be able to examine publicly available information and the competence centre’s register and reports of other FRAND determinations, as well as non-confidential documents and information produced by or submitted to the competence centre.

Removed:Recital 46 a (new): (46a) The support mechanisms, such as IP vouchers for SMEs, have been effective in assisting SMEs to protect their IP rights. The period of application of those mechanisms should be prolonged beyond 2024.

Added:Recital 39: (39) If a party fails to engage in the FRAND determination after the panel of conciliators has been appointed, the other party may request the termination or may request that the conciliator issues a recommendation for a FRAND determination on the basis of the information it was able to assess.

Removed:Article 1 – paragraph 2 – introductory part: 2. This Regulation shall apply to patents that have been declared essential to a standard that has been published by a standard development organisation, 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,

Added:Recital 40: (40) If a party initiates a procedure in a jurisdiction outside the Union resulting in legally binding and enforceable decisions regarding the same standard that is subject to FRAND determination and its implementation, or including SEPs from the same patent family as SEPs subject to FRAND determination and involving one or more of the parties to the FRAND determination as a party; before or during of the FRAND determination by a party, the panel of conciliators, or where it has not been appointed has not been established, the competence centre, should be able to terminate the procedure upon the request of the other party.

Removed:Article 1 – paragraph 3: 3. 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 rise to significant difficulties or inefficiencies affecting the functioning of the internal market, Articles 17 and 18 and Article 34(1) shall not apply. The Commission shall, after an appropriate consultation process including all relevant stakeholders, by means of a delegated act adopted in accordance with Article 67, establish a list of such use cases, standards or parts thereof. The Commission shall review that list once a year in order to determine if it needs to be updated.

Added:Recital 41: (41) At the conclusion of the procedure, the panel of conciliators should make a proposal recommending FRAND terms and conditions. Either party should have the option to accept or reject the proposal. If the parties do not settle and/or do not accept its proposal, the panel of conciliators should draft a report of the FRAND determination. The report would have a confidential and a non-confidential version. The non-confidential version of the report should contain the proposal for FRAND terms and conditions and the methodology used and should be provided to the competence centre for publication in order to inform any subsequent FRAND determination between the parties and other stakeholders involved in similar negotiations. The report would thus have a dual purpose to encourage the parties to settle and to provide transparency as to the process and the recommended FRAND terms in cases of disagreement.

Removed:Article 1 – paragraph 4: 4. Where the functioning of the internal market is severely distorted due to significant difficulties or inefficiencies in the licensing of SEPs, this Regulation shall also apply to existing standards. The Commission shall, after an appropriate consultation process including all relevant stakeholders, by means of a delegated act pursuant to Article 67, determine which of the existing standards, parts thereof or relevant use cases can be notified in accordance with Article 66(1) or (2), or for which an expert opinion can be requested in accordance with Article 66(3). The Commission shall also determine by means of that delegated act which procedures, notification and publication requirements set out in this Regulation apply to those existing standards. The delegated act shall be adopted by ... [OJ: please insert the date 18 months from entry into force of this regulation]. The Commission shall check once a year if the list needs to be updated.

Added:Recital 42: (42) The Regulation respects the intellectual property rights of patent owners, in line with Article 17(2) of EU Charter of Fundamental Rights, although it includes a restriction on the ability to enforce a SEP that has not been registered within a certain time-limit and introduces a requirement to conduct a FRAND determination before enforcing individual SEPs. The limitation on the exercise of intellectual property rights is allowed under the EU Charter, provided that the proportionality principle is respected. According to settled case-law, fundamental rights can be restricted provided that those restrictions correspond to objectives of general interest pursued by the Union and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes the very essence of the rights guaranteed39 . In that respect, this Regulation is in the public interest in that it provides a uniform, open and predictable information and outcome on SEPs for the benefit of SEP holder, implementers and end users, at Union level. It aims at dissemination of technology for the mutual advantage of the SEP holders and implementers. Furthermore, the rules concerning the FRAND determination are temporary thus limited and aimed at improving and streamlining the process but are not ultimately binding.40

Removed:Text from Article 66 (4) has been moved to Article 1, since it deals with the scope of application of this Regulation.

Added:Recital 43: (43) The FRAND determination is also consistent with the right to an effective remedy and to access to justice as laid down in Article 47 of the Charter of Fundamental Rights of the European Union as the implementer and the SEP holder fully retain that right. In case of failure to register within the prescribed time limit, the exclusion of the right to effective enforcement is limited and necessary and meets objectives of general interest. As confirmed by the CJEU41 , the provision of a mandatory dispute resolution as a precondition to access to competent courts of Member States is deemed to be compatible with the principle of effective judicial protection. The FRAND determination follows the conditions for mandatory dispute resolution outlined in the CJEU judgments, taking into account the particular characteristics of SEP licensing. The FRAND determination procedure also allows a deposit of a bond by the alleged infringer as a provisional injunction of a financial nature, which can be requested in order to avoid seriously restricting the alleged infringer’s activity and ensuring that the other party receives the corresponding sum in the event of a claim for damages. Moreover, the FRAND determination in no way impairs the SEP holder’s ability to receive compensation for an infringement that occurred during the FRAND determination in subsequent court proceedings.

Removed:Article 2 – paragraph 1 – point 1: (1) ‘standard essential patent’ or ‘SEP’ means any patent that has been declared essential to a standard and is in force in a Member State;

Added:Recital 44: (44) When determining the aggregate royalties and making FRAND determinations the conciliators should take into account in particular any Union acquis and judgments of the Court of Justice pertaining to SEPs as well as guidance issued under this Regulation, the Horizontal Guidelines42 and the Commission’s 2017 Communication ‘Setting out the EU approach to Standard Essential Patents’.43 Furthermore, the panel of conciliators should consider any expert opinion on the aggregate royalty or in the absence thereof, should request information from the parties before it makes its final proposals well as guidance issued under this Regulation, as well as guidance issued under this Regulation.

Added:Recital 45: deleted

Added:Recital 45 a (new): (45a) In order to avoid a possible negative impact on companies which are established in the Union as well as engage and compete successfully as regards the development of global technologies through standardisation, the Commission should evaluate the impact that the essentiality check system, the aggregate royalties determination system and the FRAND determination system have on the competitiveness of Union SEP holders on a global level. Based on the outcome of that evaluation, the Commission should, where necessary, present a legislative proposal in order to adapt the systems. The role of patent pools, including those created by SEP implementers, should be evaluated by the Commission in order to assess their impact once this Regulation has entered into force, notably in terms of their impact on the competitiveness on the market.

Added:Recital 46: (46) SMEs may be involved in SEP licensing both as SEP holders and SEP implementers. While there are currently a few SME SEP holders, the efficiencies produced with this Regulation should also facilitate the licensing of their SEP. Additional conditions are necessary to relieve the cost burden on such SMEs such as reduced administration burdens and administrative fees and potentially reduced fees for essentiality checks and conciliation in addition to free support and trainings, so that they are better placed to engage in SEP related matters and also standard development. The SEPs of micro and small enterprises and start-ups should not be the subject of sampling for essentiality check, but they should be able to propose SEPs for essentiality checks if they wish to. SME and start-up implementers should likewise benefit from reduced access fees and free support and trainings. Finally, SEP holders should be encouraged to incentivise licensing by SMEs through low volume discounts or exemptions from FRAND royalties. In this context, it is important to ensure that SMEs and start-ups benefit from a one-stop shop set up by the competence centre which identifies relevant licensees and licensors for the SMEs and advises them, free of charge, on SEPs. To that end, the competence centre should set up a SEP Licensing Assistance Hub for SMEs and start-ups which could also provide, under certain conditions, assistance with regard to judicial support, such as a pro bono legal representative …

Added:Recital 46 a (new): (46a) While advantages should be granted to SMEs, they should not be susceptible to misuses. In this regard, patent assertion entities, which may be characterised by an “obtain and assert” business model and which have the purpose of generating revenues through licensing fees, royalties and damage compensation, should not benefit from exemptions and the help from the competence centre provided for in this Regulation.

Added:Recital 46 b (new): (46b) The support mechanisms, such as IP vouchers for SMEs, have been effective in assisting SMEs to protect their IP rights. The period of application of those mechanisms should be prolonged beyond 2024.

Added:Recital 47: (47) In order to supplement certain non-essential elements of this Regulation, the power to adopt acts, in accordance with Article 290 of the Treaty on the Functioning of the European Union, should be delegated to the Commission in respect of the items to be entered in the register or in respect of determining the relevant existing standards or to identify implementations of standards or parts thereof for which the Commission establishes that there are no significant difficulties or inefficiencies in licensing on FRAND terms. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making44. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

Added:Recital 48: (48) In order to ensure uniform conditions for the implementation of the relevant provisions of this Regulation, implementing powers should be conferred on the Commission to adopt the detailed requirements for the selection of evaluators and conciliators, as well as adopt the rules of procedure and Code of Conduct for evaluators and conciliators. Evaluators and conciliators should be of good repute and possess sufficient knowledge, skills and experience to perform their duties. The Commission should also adopt the technical rules for the selection of a sample of SEPs for essentiality checks and the methodology for the conduct of such essentiality checks by evaluators and peer evaluators. The Commission should also determine any administrative fees for its services in relation to the tasks under this Regulation and fees for the services of evaluators, experts and conciliators, derogations thereof and payment methods and adapt them as necessary. The Commission should also determine the standards or parts thereof that have been published before the entry into force of this Regulation, for which SEPs can be registered. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.45

Added:Article 1 – paragraph 2 – introductory part: 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, after 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. / (deleted) / (deleted)

Added:Article 1 – paragraph 3: 3. Articles 17 and 18 and Article 34(1) shall not apply where 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 implementations of certain standards or parts thereof. Such implementations, standards and parts thereof shall be identified pursuant to the procedure set out in Article 65b.

Added:Article 1 – paragraph 4: 4. Without prejudice to paragraph 2, 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 the functioning of the internal market is severely distorted due to significant difficulties or inefficiencies in the licensing of SEPs for certain implementations, standards and parts thereof. Such implementations, standards and parts thereof shall be identified pursuant to the procedure set out in Article 65c.

Added:Article 1 – paragraph 5: 5. This Regulation shall not apply to SEPs that are subject to a royalty-free intellectual property policy, except when such SEPs are part of a portfolio of patents licensed for royalties.

Added:Article 2 – paragraph 1 – point 1: (1) ‘standard essential patent’ or ‘SEP’ means any patent that a SEP holder claims to be is essential to a standard;

Article 2 – paragraph 1 – point 3: (3) ‘standard’ means a technical specification, adopted by a standard development organisation, for repeated or continuous application;

Change 3

Changed:Article 2 – paragraph 1 – point 5 a (new): (5a) ‘use case’‘implementation’ means a specific scenario where a particular standardised technology or method is applied to fulfil a given purpose or function of a deviceproduct, process, service or service;system, irrespective of the level in the value chain;

Article 2 – paragraph 1 – point 6: (6) ‘SEP holder’ means an owner of a SEP or a person holding an exclusive licence for a SEP in one or more Member States;

Change 4

Removed:Article 2 – paragraph 1 – point 7 a (new): (7a) ‘significant difficulties or inefficiencies’ means one of the following: / (a) material impediments: circumstances or conditions where the negotiation or implementation of a SEP licensing agreement, including any lack or any part thereof, results in a substantive obstacle to the timely and effective deployment, development, distribution or commercialisation of a product, service, or technology; / (b) unreasonable delays: situations in which the duration of licensing negotiations extends beyond customary or reasonable or average timeframes for such negotiations in the industry, resulting in undue postponement of the conclusion of a licence agreement; / (c) excessive costs: scenarios where the financial burden of negotiating or implementing SEP licensing agreements are notably higher than industry norms or reasonable benchmarks, to the extent that it inhibits or restricts fair returns for SEP holders or market entry or development, or distribution for SEP implementers; / (d) litigation or dispute frequency: situations where SEP licensing negotiations, agreements, or terms are the subject of multiple recurrent or concurrent legal disputes, challenges, or litigations involving more than one SEP holder or SEP implementer; / (e) barriers to innovation: situations where the implementation of a standard, including any lack or limitation thereof, hinders, limits, or curtails technological innovation or advancement, as compared to industry norms or similar standard implementations…

Added:Article 2 – paragraph 1 – point 7: (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;

Removed:The terms "significant difficulties or inefficiencies" have to be defined since they are decisive for the scope of application in accordance with Article 1 (3) and (4).

Article 2 – paragraph 1 – point 10: (10) ‘aggregate royalty’ means the total amount of money paid or required to be paid to license all patents essential to a standard;

Change 5

Changed:Article 2 – paragraph 1 – point 10 a (new): (10a) ‘royalty free’‘royalty-free’ means available without payment of a royalty or without an agreement tofor any other consideration, whether monetary or non-monetary;

Change 6

Changed:Article 2 – paragraph 1 – point 11: (11) ‘patent pool’ means an entity, created by an agreement between two or more SEP holders,holders or a consortium in which multiple SEP holders agree to license one or more of their SEPs to each other or to third parties;

Change 7

Removed:Some patent pools are not created by SEP holders but by a third party, those patent pools also have to be covered by this legislation.

Article 2 – paragraph 1 – point 13: (13) ‘claim chart’ means a document identifying correspondence between the elements (features) of one patent claim and at least one requirement of a standard or recommendation of a standard;

Change 8

Changed:Article 2 – paragraph 1 – point 16: (16) ‘patent family’ means a collection of patent applications coveringhaving theat sameleast inventionone andpriority whosein memberscommon, haveincluding the samepriority priorities;documents themselves;

Change 9

Changed:Article 2 – paragraph 1 – point 17 a (new): (17a) ‘conciliator’ means any person that has been appointed to mediate among parties in establishing an aggregate royalty in accordance with Article 17, to serve on a panel that provides a non-bindingan opinion on an aggregate royalty in accordance with Article 18 and to serve in the FRAND determination in accordance with Title VI, who is independent and impartial,impartial and does not have any direct or indirect conflict of interest;

Article 2 – paragraph 1 – point 17 b (new): (17b) ‘evaluator’ means any person that has been appointed to conduct essentiality checks in accordance with Title V, who is independent and impartial, and does not have any direct or indirect conflict of interest;

Article 2 – paragraph 1 – point 17 c (new): (17c) ‘peer evaluator’ means any person that has been appointed to conduct a peer evaluation, who is independent and impartial, and does not have any direct or indirect conflict of interest;

Change 10

Changed:Article 2 – paragraph 1 – point 18 a (new): (18a) ‘patent assertion entity’ means an entity that primarily derives its revenue from the enforcement or licensing of patents, including any damages or monetary awards from the assertion of such patents, and that does not engage in the production, manufacture, sale,sale or distribution of goodsproducts or services utilising the patented inventions or in the research and development of such inventions, that is not an educational or research institution,institution or technology transfer organisation facilitating the commercialisation of technological innovations generated by them, and that is not an individual inventor asserting patents originally granted to that inventor or patents that cover technologies originally developed by that inventor.

Article 3 – paragraph 2 – point a: (a) set up and maintain an electronic register and an electronic database for SEPs in accordance with Articles 4 and 5;

Article 3 – paragraph 2 – point b: (b) set up and manage rosters of evaluators and conciliators in accordance with Article 27;