“The legal rights granted with the aim to protect the creations of the intellect. These rights include Industrial Property Rights (e.g. patents, industrial designs and trademarks) and Copyright (right of the author or creator) and Related Rights (rights of the performers, producers and broadcasting organisations).”
Source: European Commission
Standards rely on technical contributions from various sources. These contributions may contain patented technologies and other protected rights which are commonly known as Intellectual Property Rights. When it is not possible on technical grounds to make or operate equipment or methods which comply with a standard without infringing an IPR, i.e. without using technologies that are covered by one or more IPR, we describe that IPR as ‘essential’.
The ETSI IPR Policy seeks to reduce the risk that our standards-making efforts might be wasted if essential IPRs are unavailable under Fair, Reasonable and Non-Discriminatory (FRAND) terms and conditions. At the same time, we recognize that IPR holders should be fairly and adequately rewarded for the use of their IPRs in the implementation of our standards.
The objective of the ETSI IPR Policy is to balance the rights and interests of IPR holders and the need for implementers to get access to the technology defined in our standards under FRAND terms and conditions.
We have produced a guide to help our members understand and implement the policy.
We issue this public statement to clarify that ETSI does not take any position regarding the correct interpretation of its IPR policy and its IPR Guide.
The ETSI IPR Policy and the IPR Guide texts stand as independent documents in their own right.
It is reiterated that specific licensing terms and negotiations are commercial matters between the companies and shall not be addressed within ETSI.
The basic principle of the ETSI IPR regime remains FRAND with no specific preference for any licensing model.
We maintain a database which allows public access at any time to information about IPRs which have been notified to us as being essential, or potentially essential, to our standards.
We also publish an extract of this database, usually twice a year, in a Special Report (SR 000 314).
During the proposal or development of a standard, our members must inform us if they are aware that they hold any essential IPRs.
IPRs can be declared in two ways:
We ask any holder of essential IPR declared to us to provide an irrevocable undertaking in writing that it is prepared to grant irrevocable licences on fair, reasonable and non-discriminatory (“FRAND”) terms and conditions.
Licensing is a permission granted by the IPR owner to another to use the protected rights conferred by an IPR on agreed terms and conditions, while the IPR owner continues to retain ownership of the IPR.
Specific licensing terms and negotiations are commercial issues between the companies and are never addressed within ETSI. However, ex ante disclosure of licensing terms is allowed in ETSI.
Ex ante disclosure of licensing terms is a mechanism by which essential IPR holders disclose their licensing terms (e.g. royalty rates) before the patented technology is selected as part of a standard.
This is outlined in our IPR Policy and additional information can be found in our guide to IPRs.
Anti-trust legislation exists to prevent unfair business practices. Our position as a recognized European Standards Organization does not exempt us, nor our members, from the application of competition law. We have produced practical guidelines on how to ensure compliance with relevant laws on antitrust.
To find out more about any aspect of ETSI and IPRs, please contact our Legal team.