Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 18: STANDARD-ESSENTIAL PATENTS AND INJUNCTIVE RELIEF
Technical standardization helps to improve the quality, security and interoperability of products or services, having affected every aspect of modern social life. However, the relationship between technical standards and patents has not become a worldwide concern until recent decades. In the past, a technology usually had already been in the public domain before it became a technical standard. Therefore, patent protection for technology had no substantial impact on technological standardization. However, in recent decades, things have drastically changed. Technologies in the fields of electronics, telecommunications, software and the internet progress very quickly, and standardization thereof accelerates accordingly. Many technologies become de facto or de jure standard and are still effectively protected by patents. These patents that cover the technical standard are referred to as ‘standard-essential patents’ (SEPs). Anyone who implements the standard will necessarily infringe these SEPs. That is, such infringement could not have been avoided by another technically feasible non-infringing implementation of such standard. Once a patent becomes a ‘standard-essential patent’, the patentee’s bargaining power in patent licensing negotiations will be greatly enhanced, except that the patented technology from the very beginning was the only choice in the market. After a technical standard has been widely implemented, if the market was forced to adopt alternative technical solutions, standard implementers would have to bear enormously high switching costs. The owners of SEPs could take advantage of these to impose restrictive patent licensing terms on standard implementers.
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