1 S.Tronchon Legal Considerations when drafting a standard

2 S.Tronchon Two legal areas have to be considered when drafting a standard: n ensure the compliance with the ETSI IPR Policy n ensure the compliance with competition law

3 S.Tronchon What is the ETSI IPR Policy? n the ANNEX 6 of the ETSI Rules of Procedure n defining the obligations and rights of members n in respect of the identification and notification of Intellectual Property Rights (IPRs) essential for ETSI standards

4 S.Tronchon What are the IPRs? n copyrights n patents n registered designs…

5 S.Tronchon What is the goal of the IPR Policy? Ensuring that the standard cannot be blocked by the refusal of an IPR holder to grant licences for the use of its essential IPR.

6 S.Tronchon Rights and obligations of members OBLIGATIONS n to inform ETSI about their own and other people’s Essential IPRs (4.1) n to undertake to grant licences on fair, reasonable and non-discriminatory terms and conditions (6.1) n to abstain from claiming copyright on standards documentation (9.1) RIGHTS n no obligation to conduct IPR searches (4.2) n to refuse the inclusion of their IPRs in Standards (8.1 and 8.2) n obtain licences on fair, reasonable and non-discriminatory terms and conditions (6.1) n make copies of standards (11) and use IPRs (other than copyright), free of charge (9.3)

7 S.Tronchon Obligations of members in practice 1. Check with their patent experts whether their company owns IPRs likely to be Essential to standards 2.Notify these Essential IPRs at the earliest convenience:  at the beginning of meetings  on submission of a technical contribution  on working group approval of a draft deliverable with an IPR information Statement form. with an IPR information Statement form. 3. Provide ETSI with an undertaking to grant licences with an IPR Licensing declaration. with an IPR Licensing declaration.

8 S.Tronchon Obligations of the Institute To inform users of standards about Essential IPRs pertaining to ETSI standards: To inform users of standards about Essential IPRs pertaining to ETSI standards: n by publishing details of Essential IPRs in the SR SR n by publishing details of Essential IPRs in the standards whenever possible

9 S.Tronchon IPRs on the ETSI web site IPRs database + IPRS forms ETSI IPR Policy (Annex 6)

10 S.Tronchon What is competition law? It is the law ensuring that: n barriers to trade are not erected n effective competition in the single market is preserved n efficiency, innovation, lower prices are encouraged

11 S.Tronchon What are the practices to be avoided under competition law? u Article 81 of the EC Treaty forbids all agreement between undertakings, decision by association of undertakings and concerted practices able to restrain competition and trade within the common market. u Article 82 forbids the abuse by one or more undertakings of a dominant position within the common market, or in a substantial part of it

12 S.Tronchon Article 81 of the Trea ty... Definition of a restrictive- competition behaviour. n Decisions, agreements, concerted practices n taken by competitors n which have a negative effect on trade General examples of unfair agreements u Market allocation u Boycott, refusal to deal u Pricing agreements. u Output restraints

13 S.Tronchon Examples of practices forbidden under article 81, within ETSI activities. u Agreement between at least two members, in order to favour the inclusion of a member’s patent, within the elaboration of a standard, for commercial reasons. u Agreement granting a license in unfair and discriminatory terms and conditions.

14 S.Tronchon Article 82 of the Treaty : Definition of an abuse of a dominant position: n a company enjoying a dominant position on the market n abuses its power n to impose unfair restrictions General examples of abuses u Abuses on pricing u Output restraints u Application of unequal conditions to equivalent performances.

15 S.Tronchon Examples of dominant position abuses practices within ETSI activities: n Abuse of intellectual property rights: - Fixation of abusive royalty terms. - Inclusion of tie-in clauses in the licenses agreements. - Treatment of a licensee in a discriminatory way.

16 S.Tronchon Consequences of infringements of Articles 81 and 82 The Commission can impose very high fines: n on ETSI as an Institute n on its members individually The Commission can invalidate the standard

17 S.Tronchon Measures to avoid the adoption of anti-competitive practices: n respecting the agenda of the meeting? n ensuring that the decision does not impose a restriction ? n ensuring that the standard adopted is open, transparent and accessible? n ensuring that the rules and procedure are clear? n focusing discussions on standardization issues n ensuring that essential IPRs are disclosed?

18 S.Tronchon More information? Stéphane Tronchon Stéphane Tronchon ETSI Legal Adviser