MLex on Standard Essential Patents
Setting the global standard for SEP insight and analysis
In recent years, many of the world’s antitrust enforcement regimes – led by the US and EU – have built a consensus on Standard Essential Patent – or SEP – licensing, agreeing on the need for ensuring patent owners don’t abuse their market power in technology standards.
However, in November 2017, the new antitrust leadership of the US Department of Justice signaled a major policy shift away from favoring patent users. A few weeks later, the Japanese patent office dropped their plan to allow arbitration of SEP disputes, at least in part in response to the changes in US direction. In contrast, later in the same month, the EU published a long-awaited policy paper in which they chose to stay neutral in the struggle between patent owners and users, trying to strike a balance between the opposing forces.
With antitrust experts positioned in key regulatory centers across Europe, North America and Asia, MLex provided the most accurate and comprehensive reporting on developments surrounding SEPs during this crucial month. Below, we've made a small selection of the coverage published for MLex readers throughout the month free-to-read.
November 10: US DOJ's Delrahim says "fresh thinking" required
In a forceful speech in Los Angeles on November 10, Makan Delrahim, the US Department of Justice’s new assistant attorney general for antitrust, said that “fresh thinking” is needed on how antitrust law is applied to disputes between patent holders and those companies that implement their technology.
To find out more, read our detailed analysis "Delrahim puts standard-setting organizations, implementers on notice over SEP licenses" (13 November 2017).
For even more insight, listen to MLex Chief Digital Risk Correspondent Mike Swift and Senior Antitrust Correspondent Joshua Sisco discuss the developments in the MLex podcast "US sides squarely with owners of technology standards in patent licensing negotiations" (29 November 2017).
November 28: Japan takes a cue from the US
MLex learned that, just months after the Japanese government began rallying for the need for patent regulators to rule on disputes involving the licensing of standard-essential patents, the Japan Patent Office will be shelving the idea in favor of drafting guidelines to help determine licensing fees. One of the main reasons given for the unusually sharp change was what JPO Commissioner Naoko Munakata called a “fluctuation in the US thinking on SEPs.”
Read more details in our insight "Japan drops plan to allow arbitration of SEP disputes, taking cue from US regulators" (28 November 2017).
November 29: "Watered-down" EU guidance released
Following months of fierce lobbying and intense internal discussion, the EU executive published a “communication” on the use of SEPs. However, despite a leaked draft seen by MLex in October suggesting that patent owners "should be able to charge different rates for the use of patents depending on how they are deployed", the final document "doesn't grapple with...fees based on a patent’s use."
Read more in our analysis "Reticent EU patent policy puts litigation, antitrust back in spotlight" (29 November 2017).
The global perspective: A win for innovators
A recent policy U-turn on standard-essential patents in the United States could set the tone for how intellectual property issues are handled by regulators and courts around the world.
Listen in as MLex correspondents across North America, Europe and Asia weigh in on this fundamental rethink of IP rights and its impact around the world in the MLex podcast "Reversal of fortune: A worldwide win for innovators as patent policy pendulum swings back in their favor" (1 December 2017)
Access comprehensive coverage in the MLex Case File
Our Case File collects our coverage of talks in international bodies ITU, ETSI, and IEEE on standards-setting and essential patents. It contains 70 proprietary insights and analyses, and more than 40 Official Statements, with coverage stretching back to 2012.
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