In early 2023, the European Commission will publish its proposal for a regulation on Standard-Essential Patents (SEPs) to address issues of legal uncertainty, the vulnerability of SMEs, and transaction costs. This regulation could bring some peace of mind, or it could make matters worse. While software patents are not enforced by courts in Europe, the European patent offices continue to grant software patents. And with the Unified Patent Court (UPC) possibly coming in 2023, European software developers are not safe from patent uncertainty.
In this presentation we will outline the European Commission's motivations, the input they're working from and the solutions they're considering. The Commission mentions FRAND licensing terms among the solutions, but, is it thinking of a type of FRAND licensing that truly doesn't discriminate against free software? We will discuss definitions for FRAND which could give real protections for free software and we will look into precedents which could be used as a basis for protecting the use, development and distribution of software against patents. Since the Commission's preparatory documents state "legal certainty" as one of the main objectives for this regulation, and knowing that software developers would like to be free from the current legal uncertainty around patents, we might be able to find a basis for agreement on a solution. If the EU institutions are serious about being fair, reasonable and non-discriminatory, and if they're serious about standards and interoperability, this could be our chance to get a regulation which ensures that patents never block free software from abiding by standards.
This regulation will affect a large number of fields, including many fields where innovation is measured in how many patents were obtained this year. Software risks being collateral damage in a bigger tug-o-war between industrial sectors.
Ciarán O'Riordan, Senior Policy Advisor, OpenForum Europe
Panos Alevropoulos, Administrator, End Software Patents
