Yesterday the European Commission started soliciting public comments on Samsung’s proposed commitment that, during the next five years, Samsung would not seek injunctive relief within the European Economic Area (EEA) on standard essential patents (SEPs) in the field of mobile communications against companies that agree to a particular framework for determining fair, reasonable and non-discriminatory (FRAND) licensing terms either by agreement, by court determination or by arbitration (the default forum).  Interested parties should submit comments within a month.

This relates to an investigation that the European Commission opened in January 2012 on whether Samsung honored FRAND commitments given to ETSI by seeking injunctive relief in Europe against Apple mobile products on Samsung 3G UMTS SEPs. In December 2012, the European Commission gave initial views (in both a press release and supporting memo of frequently asked questions) that seeking injunctive relief is a legitimate remedy, but may be “an abuse of a dominant position in the exceptional circumstances … where the holder of a SEP has given a commitment to license these patents on FRAND terms and where the company against which an injunction is sought is willing to negotiate a FRAND license.”  The European Commision expressed concern that seeking injunctive relief in those exceptional circumstances “may distort licensing negotiations unduly in the SEP-holder’s favour.”  The European Commision took no position on what would be a reasonable royalty rate, stating that “courts or arbitrators are generally well equipped to do this.”

In response, Samsung submitted Proposed Commitments a few weeks ago (Sep. 27, 2013) that provide a framework over the next five years where, before Samsung would seek injunctive relief on mobile communication SEPs in the EEA, Samsung and a willing licensee may negotiate licensing terms and, if they reach no agreement within 12 months, then the FRAND terms would be decided in court or arbitration (the default forum).  This approach is similar to the framework proposed in the settlement earlier this year between the U.S. Federal Trade Commission and Google/Motorola.

The European Commision thus issued its press release yesterday seeking public comments on Samsung’s proposal along with a supporting memo addressing frequently asked questions on the issues presented.