In a new blog post, IP Europe gave its favorite false narrative a new coat of paint by suggesting that the bedrock FRAND requirement of “license for all” equates to some kind of “license to kill.” It’s a clever turn-of-phrase designed to appeal to European Commission officials debating the final shape of a Communication on the licencing of standard essential patents.
Parts of the Commission, including the all-powerful DG Competition, have been skeptical of language in the upcoming SEP Communication that embraces so-called “use-based licensing,” which IP Europe advocates. Hopefully, it will take more than clever marketing to distract them from the facts here.
The blog post makes the blatantly untrue assertion that the “license for all” policy is “a new, untested, licencing policy.” In fact, the “licence for all” requirement has long been a bedrock of the voluntary FRAND licensing commitment that all SEP holders agree to abide, and features prominently in DG Competition’s guidelines on SEP licencing.
IP Europe and its members’ continued marketing of this fiction prompted Karl Heinz Rosenbrock, who served as director-general of ETSI while the standards body was drafting its current IPR policy, to publish an article earlier this year explaining that the ‘license for all’ has always been at the core of ETSI’s IPR Policy.
In that piece, Mr. Rosenbrock stated:
“Never during the more than five years of work on the ETSI IPR Policy – and even later – do I recall a distinction being made with regard to the category of potential licensees (of the SEPs). As already noted, ETSI adopted the clear and unambiguous policy of requiring that FRAND licenses be offered to all interested comers/potential licensees who provide products or services designed to be compatible with the chosen standard, irrespective of their position in the industry or a chain of distribution. “
This isn’t news for IP Europe’s members, in fact many of them – including founding member Ericsson – have in the past argued that FRAND commitments required a “license for all”. Ericsson made this exact argument to the Korean Fair Trade Commission in 2009 when it joined the complainants in a case against Qualcomm.
Put simply, to dismiss ‘licence for all’ as a ‘licence to kill’ may be a nice soundbite but it is a complete fiction.
The requirement of a licence for all is the bedrock of FRAND, and has been so for decades. If the Commission allows itself to be manipulated into moving away from this longstanding principle of SEP licencing it will effectively hand a small number of firms a licence to discriminate, and a wide range of European companies will find their hands tied as they attempt to unleash the potential promised by the Internet of Things.
We just learned that Mr. Rosenbrock published another paper last week, titled “Licensing At All Levels is the Rule Under The ETSI IPR Policy” as a response to IP Europe’s so-called “Rebuttal” to his first paper. It’s a must read for those looking to understand just how disingenuous IP Europe’s arguments about “license for all” really are.