1. SEM21-02 ETSI Seminar 2010 « Legal Considerations » Erik Jansen, LL.M. ETSI Legal Director Copyright © ETSI 2010. All rights reserved. ETSI Seminar Sophia Antipolis, 15-17 June 2010

2. World Class Standards ETSI Seminar Sophia Antipolis, 15–17 June 2010 2 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 Legal considerations

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

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

5. World Class Standards ETSI Seminar Sophia Antipolis, 15–17 June 2010 5 Tension Inherent tense relationship between IPRs and Standards: Standards are intended for free, collective use IPRs are destined for private, exclusive use 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) Essential IPR = implementation of a standard is requiring the use of protected technology

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

7. World Class Standards ETSI Seminar Sophia Antipolis, 15–17 June 2010 7 MAIN CHARACTERISTICS No technical reservation for the inclusion of IPRs in standards Early identification and disclosure of essential IPRs 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 non- discriminatory) 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)

8. World Class Standards ETSI Seminar Sophia Antipolis, 15–17 June 2010 8 DISCLOSURE OF ESSENTIAL IPRs Members Duty to disclose in a timely fashion No requirement to conduct IPR searches ETSI 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 http://webapp.etsi.org/IPR/home.asp No checking of essentiality of the disclosed IPR Call for IPR by chairmen of technical bodies

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

10. World Class Standards ETSI Seminar Sophia Antipolis, 15–17 June 2010 10 Overview Immediate irr. FRAND-undertaking by IPR owner / request by ETSI to give irr. FRAND-undertaking. YesNo Initiate procedure of non-availability (Clause 8 IPR Policy) Information reflected in IPR Database http://webapp.etsi.org/IPR/home.asp Submitting an own technical proposal to ETSI Own IPR which might be essential if proposal adopted Draw ETSIs attention on a bona fide basis

11. World Class Standards ETSI Seminar Sophia Antipolis, 15–17 June 2010 11 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 How are ex ante disclosures working in ETSI: 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 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

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

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

14. World Class Standards ETSI Seminar Sophia Antipolis, 15–17 June 2010 14 Guidelines on Antitrust What is competition law? It is the law ensuring that: barriers to trade are not errected effective competition in a market is preserved efficiency, innovation, [lower] free regulation of prices are encouraged 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.

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

16. SEM21-02 Thank you for your attention Erik Jansen, LL.M. ETSI Legal Director Copyright © ETSI 2010. All rights reserved ETSI Seminar Sophia Antipolis, 15–17 June 2010 Legal@etsi.org