Standard Essential Patents - Part 3

Final thoughts on SEPs

In conclusion: the EC has identified a number of key areas:

• Transparency (the public should be able to easily find out which patents cover which technology);
• Value (the debate around the value of licences should be supported);
• Certainty (the way standard-related patent conflicts are resolved should be standardized – no pun intended).

The EC thus also recognizes that a balance has to be struck between rewarding patentees for their innovative work, while also ensuring that the overall presence of patents on standard-related technology does not become so burdensome that it prevents the technology from being implemented. Rather than something that can be resolved immediately, this is something that must be worked out over the coming years in consultation with the stakeholders and in line with the evolving technology.

The EC has so far decided to avoid wading into what is currently one of the major debates among SEP parties: whether the licensing fee should be a single price, the same for every device regardless of what it does or how often it uses the technology, or whether the way the device uses the invention can play a role (‘use-based licensing’). Differences in licensing costs can become very significant, especially for more expensive devices such as smartphones and cars.

One thing is certain. For SEPs and patented technology in general, some very interesting years lie ahead.

This article was written in August 2018 and published in Fortify #7, Winter 2018/2019.