REŽIM EURÓPSKEHO INŠTITÚTU PRE TELEKOMUNIKAČNÉ NORMY – ETSI: ZÁSADY, ROZHODNÉ PRÁVO A ÚČINOK ETSI VOČI PREDLOŽENÝM VYHLÁSENIAM
Regime of European Telecommunications Standards Institute – ETSI: Policy, applicable law and effect of ETSI against given declarations
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The European Telecommunications Standards Institute (ETSI) was founded upon an initiative on the EU-Commission with the aim of drafting European telecommunication standards in order to secure the interoperability, to advance the competition on the merits between technologies of different companies, and to serve the consumer’s welfare. The legal framework of ETSI, which is composed of ETSI Statutes, ETSI Directives, including ETSI Rules of Procedure and ETSI Intellectual Property Rights Policy, is governed by French law. ETSI standards constitute the European norms and remain accessible to all companies also in case they fall within the scope of protection of one or more patents. ETSI organs have ensure, if necessary assisted by the EU-Commission, that technologies which are covered by patents can become standards only if their proprietors irrevocably declare that they are prepared to irrevocably license their standard essential patents under fair, reasonable and non-discriminatory terms and conditions. In case a declaration according to Clause 6.1 of ETSI IPR Policy is refused, ETSI has to undertake all the measures which are necessary to prevent that the respective patented technology will become or remain a standard. The acceptance, which is only necessary to effectuate the contract effects, and which has to be expressed towards the promisor, also does not need any specific form and can even be implied or tacit. From the point in time of the acceptance by the third beneficiary, the contract can only be revoked by consent of all parties. A final agreement (mutual consent) as regards the price, i.e. license royalty, is no precondition for the coming into being of the license contract. In case of dispute the fixing and the assessment of the reasonableness of the price is a matter for courts. It should be added that a subsequent assignment of the standard essential patent(s) at issue to third parties does not affect the license concluded under the FRAND conditions. Only that way it can be secured that ETSI standards remain accessible under non-discriminatory and reasonable conditions fixed in a dispute by courts. The latter being an important pre-condition for the interoperability and competition on the merits between technologies of different companies to the well-being of consumers.
543 – 566
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