Licensing At All Levels Is The Rule Under The ETSI IPR Policy: A Response to Dr. Bertram Huber

Abstract

As the former Director-General of the European Telecommunications Standards Institute (ETSI), Mr. Rosenbrock has followed with interest the various discussions and disputes regarding the application of the ETSI IPR Policy. The ETSI IPR Policy was drafted, debated and finalized during his tenure, and he was closely involved in its creation and approval and has followed further discussions within ETSI. In a recent paper, Mr. Rosenbrock explained that a promise to license Standard Essential Patents (SEPs) on fair, reasonable and non‐discriminatory (FRAND) terms and conditions, under the ETSI IPR Policy, “allows every company that requests a license to obtain one, regardless of where the prospective licensee is in the chain of production and regardless of whether the prospective licensee is active upstream or downstream”. Dr. Bertram Huber wrote a response to this paper, on behalf of a group of SEP owners called IP Europe. Mr. Rosenbrock’s new paper rebuts the arguments of Dr. Huber and those who seek to undermine the principle of “licensing at all levels”. In particular, the paper confirms: • First, that a promise to license SEPs on FRAND terms and conditions, under the ETSI IPR Policy, allows every company that requests a license to obtain one, regardless of whether the prospective licensee is active upstream or downstream; • Second, that companies like Ericsson and Qualcomm, which now oppose upstream licensing of SEPs, for many years supported it; and • Third, that “end-use royalties” could be misused to pervert the “license to all” principle.