The European Commission's draft SEP regulation: A slippery slope or a renewed hope?

Standards have long been considered the building blocks of innovation, and central to the standardization process are patents that protect the underlying technologies essential to a standard, also known as standard essential patents (SEPs). Since the beginning of the 90s, licensing of SEPs has attracted a significant amount of discussion involving not just the industry and academia but also courts and competition agencies. While the latter have, time and again, come up with guidelines on SEP licensing, there continue to be questions asked in terms of a global solution to disputes concerning SEPs and the determination of fair, reasonable, and non-discriminatory (FRAND) rates. It is to that effect that the European Commission (EC) recently published its Draft SEP Regulation, intending to bring transparency and predictability to SEP licensing. The Draft Regulation drew instant reaction from both licensors and licensees across the information and communications technology (ICT) sector. Commentators and academics joined in, with quite a few being critical of the proposed regulation. Against the above backdrop, the present paper seeks to evaluate the Draft SEP Regulation proposed by the EC and further analyze the challenges likely to be posed concerning the implementation of the Draft Regulation. In doing so, it addresses the broader question as to whether the interventionist approach adopted by the EC through the Draft Regulation is likely to help European innovators and aid SEP licensing in Europe? The said question becomes even more relevant, given the recent release of Antimonopoly Guidelines for SEPs by China's State Administration for Market Regulation (SAMR).