Last year, I had the opportunity to contribute in a small way to an interesting project organised by DG Connect under the wider umbrella of the Digital Agenda for Europe initiative. The project related to valuing and licensing interoperability information – and while competition law is of course not the central consideration in this context, it is a relevant factor underlying some of the issues involved.
The project led to the creation of a specimen licence and the publication of guidelines (details below). The latter offer an interesting perspective on the valuation of different types of IP which may constitute interface information.
In the competition law context, valuation issues in relation to IP most often come up in the standard essential patent context. This project was explicitly aimed at non-standardised technology. However, some of the guidance – while of course not binding, even for interoperability information – could be said to be transposable to the standards context also. For example, the suggestion that, where patents are concerned, a judicial finding of validity may warrant higher royalty rates than patents which have not been tested is a principle which has its proponents (and opponents) in the FRAND context.
Equally, other guidance is clearly not applicable – for example, the suggestion that royalty rates may vary depending on the relationship between the licensee’s product and the licensor’s own products. In the standards context, licensors are of course subject to a FRAND obligation which limits their ability to discriminate on subjective factors of this kind. Even for interoperability information, licensors should be cautious if they may be in a dominant position – as Microsoft of course found to its cost.
The Guidelines can be downloaded (free of charge) from the European Commission online book store, here. For completeness, the specimen licence can also be found on the Europa book store, at this link.