ETSI IPR Policy FAQs
Can you help me with understanding what the Intellectual Property Rights issues are with GSM? My company would like to use GSM for XXXXX, but I don't know what, if any, IPR claims there are for its use.
If your company is interested in developing a product based on ETSI STANDARDS on GSM which might require the utilization of a patent declared to ETSI as essential, you should then contact the patent holder directly.
In order to do so, all references pertaining to essential IPRs declared to ETSI are publicly available on the ETSI IPR Online database of the web site.
With regards to Intellectual Property Rights (IPRs), ETSI Members are bound by the rules of the Institute
(Annex 6 of the Rules of Procedure of the ETSI Directives) which require them:
- to disclose any Intellectual Property Rights that they consider essential for the implementation of an ETSI STANDARD - e.g. on GSM - (Article 4.1 Annex 6 of the ETSI Rules of Procedure) and,
- to grant licenses with regard to the above mentioned IPRs on fair, reasonable, and non discriminatory terms (Article 6.1 Annex 6 of the ETSI Rules of Procedure).
What do you mean by a 'Standard' and a 'Technical Specification'?
According to the ETSI Directives (Annex 6 of the ETSI Rules of Procedure, Article 15.11), 'STANDARD' shall mean any standard adopted by ETSI including options therein or amended versions and shall include European Standards (ENs) (telecommunications series), ETSI Standards (ESs), Common Technical Regulations (CTRs) which are taken from ENs (telecommunications series) and including drafts of any of the foregoing, and documents made under the previous nomenclature, including ETSs, I-ETSs, parts of NETs and TBRs, the technical specifications of which are available to all MEMBERS, but not including any standards, or parts thereof, not made by ETSI.
The date on which a STANDARD is considered to be adopted by ETSI for the purposes of this POLICY shall be the date on which the technical content of that STANDARD was available to all MEMBERS.
According to the ETSI Directives (Annex 6 of the ETSI Rules of Procedure, Article 15.12), 'TECHNICAL SPECIFICATION' shall mean any Technical Specification (TS) adopted by ETSI including options therein or amended version including drafts, the Technical Specifications of which are available to all MEMBERS, but not including any technical specifications, or parts thereof, not made by ETSI.
The date on which a TECHNICAL SPECIFICATION is considered to be adopted by ETSI for the purposes of this POLICY shall be the date on which the technical content of that TECHNICAL SPECIFICATION was available to all MEMBERS.
What is an 'Essential' IPR?
According to the ETSI Directives (Annex 6 of the ETSI Rules of Procedure, Article 15.6), 'ESSENTIAL' as applied to IPR means that it is not possible on technical (but not commercial) grounds, taking into account normal technical practice and the state of the art generally available at the time of standardization, to make, sell, lease, otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a STANDARD without infringing that IPR.
For the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL.
Our company intends to manufacture GSM mobile stations. Can you tell me what license fee for all essential patents we will have to pay?
Are you handling it, or do we have to contact all the patent holders separately?
If we have to contact the companies separately, is there any guideline, e.g. x% of revenue as total license fee, since we are working on a business plan right now?
It is the responsibility of each STANDARD user to contact directly the patent owner. ETSI is not in a position to provide guidelines for commercial negotiations. In accordance with Article 7.2 of the ETSI IPR Policy (of the ETSI Directives), the ETSI Secretariat provides to its members procedures to allow access to information with respect to essential IPRs which have been brought to the attention of ETSI.
This obligation is fulfilled by the publication of the ETSI Special Report SR 000 314 and the maintenance of the ETSI IPR online database which should be consulted for the most updated information.
Unless otherwise indicated, the owners of the IPRs listed in the above mentioned report and database have undertaken to grant licenses for these IPRs on fair, reasonable and non discriminatory terms as provided by Article 6.1 of the ETSI IPR Policy, Annex 6 of the ETSI Rules of Procedure (of the ETSI Directives).
Where can I find the ETSI IPR Policy?
The ETSI IPR Policy is part of the ETSI Directives (our Bylaws, in other words) and is to be found in Annex 6 of the ETSI Rules of Procedures. As a result, the ETSI IPR Policy is therefore binding on ETSI Members.
Does one have to take permission from ETSI for using the patents as listed by ETSI in the Standards?
It is necessary to obtain permission to use patents declared as essential to ETSI's standards. To this end, each standard user should seek directly a license from a patent holder. In order to obtain the contact details of a patent holder, please make your request to the ETSI Legal Service.
Does the firm concerned have to pay some consideration to ETSI for utilizing the said patents or while buying the technology from another company?
Any firm interested in obtaining patents declared essential to ETSI standards shall not pay any consideration to ETSI but to the patents holders.
To this end, the concerned firm has to enter into negotiation with the companies holding patents in order to obtain licenses for the use of the patented technology included in, and essential for the implementation of an ETSI standard.