Improving the Links Between ESOs and the European Patent ...

"European standards are developed in an open process, and there are uniform, nondiscriminatory conditions for their development as well as for their sale or distribution. The implications of IPRs relevant to a standard need to be visible to the standards developers during the standardization process. Cooperation should further be improved between the standards bodies and the European Patent Office to ensure that issues where there is an interaction are visible at an early stage, as this would lead to an improved quality of patents and standards. In this context, ETSI has established cooperation with the European Patent Office and recently signed an MoU, thus institutionally confirming their commitment to deepen their established cooperation."

The section on recommendations concerning 'Strategic Goal 5: To have a standardisation system that is effective and conducive to innovation by maintaining appropriate IPR policies' reads, inter alia:

"5.3 EC, ESOs: Improve the links between the ESOs and the European Patent Office to ensure that IPR issues are considered at an early stage, as this would lead to an improved quality of both patents and standards."

I don't think that a closer co-operation between the European Patent Office and standardisation bodies is necessarily a bad thing - but I wonder:

• Where is the basis in the EPC for such kind of co-operation?
• What precisely is to be delivered by the EPO under such kind of MoU?
• Why this demonstrative vagueness, why aren't those MoUs published in full text?

This way as that matter is dealt with provokes thoughts as if there were reasons for concerns that, if known in detail, the general public would not appreciate such kind of MoU.

As was to be expected, the relationship between patents, on the one hand, and standards, on the other hand, is always difficult. The report makes clear that there are different opinions so far in different branches of the industry:

"In the Guidelines for cooperation between the EC, EFTA and the ESOs, the ESOs have committed to ensure that standards can be used by the market operators. The objective is to ensure licences for any essential IPRs contained in standards are provided on fair, reasonable and non-discriminatory conditions (FRAND). In practice, in the large majority of cases, patented technology has been successfully integrated into standards under this approach. On this basis, standards bodies are encouraged to strive for improvements to the FRAND system taking into consideration issues that occur over time. Some fora and consortia, for instance in the area of internet, web, and business process standards development have implemented royalty-free policies (but permitting other FRAND terms) agreed by all members of the respective organisation in order to promote the broad implementation of the standards."

Finally, the Expert Panel recommends the creation of a 'European Standards System Strategy Forum'. The purpose of the ESS Strategy Forum is said to be to coordinate standardization activities for Europe in the perspective of European policy priorities and initiatives. In particular, this is intended to include providing advice to EU policy-makers on the use of standardization in support of EU policies, most notably the use of standardization in the context of industrial (and especially innovation policy) as well as in the areas of health, safety, the environment and other social issues. The purpose is to create an integrated oversight standards plan for Europe. The ESS Strategy Forum shall be open for broad membership. Members of the ESS Strategy Forum shall be the ESOs, fora/consortia, the European Commission, and EFTA, Member States, Industry, society stakeholders. The Commission shall be the facilitator/convenor for the ESS Strategy Forum; the ESOs shall lead the secretariat. Might be interesting to see if also IPR policy stakeholders will be represented there.