Controversy concerning standard essential patents is not new, but recent activity in US district courts, the International Trade Commission and governmental agencies has the potential to affect litigation involving not only SEPs, but patents generally. Laura Beth Miller explains.
An SEP is a patent that is necessary in order to practise an industry standard. While adoption of a common protocol or standard across an industry or technology platform has recognised pro-competitive and pro-consumer advantages, incorporating a patent into that industry standard also has potentially anti-competitive effects.
For example, the value of the SEP may be artificially increased, while the value of competing technology is diminished; and for entities effectively forced to practise the standard to compete in the market, they must license the SEP or risk infringement claims.
To minimise these potential harms, patent owners participating in standard-setting organisations (SSOs) agree to license a SEP to standard users on ‘reasonable and non-discriminatory’ (RAND) terms. In Europe, the obligation and expression is FRAND, which means ‘fair, reasonable and non-discriminatory’. RAND and FRAND are often used interchangeably and treated as imposing the same/similar obligations.
To continue reading, you need a subscription to WIPR. Start a subscription to WIPR for £455.
In-house feature articles, the archive and expert comment require a paid subscription. Subscribe now.
Want to give it a try? We are offering a two week free trial to the WIPR website – register and select “Free Trial” to begin access to the full WIPR archive and read the latest news, features and expert comment. Begin your free trial here.
Is your 2 week free trial about to end? Upgrade to a 12 month subscription for £455 now.
If you have already subscribed please login.
If you have any technical issues please email tech support.
Patents, SEPs, FRAND,