Access to Essential Innovation and Technology
Chapter 3: Existing links and opportunities: human rights, competition and essential technologies
This chapter will first explore the relationship between the existing frame- works of IP, human rights and competition within the context of the identification of essential technologies, and will then discuss questions of how access might be delivered to them. ‘Essential’ is not a new term in the innovation space. From the IP perspective, UK legislation provides that it is patent infringement to supply an essential element for putting an invention into effect, subject to a knowledge requirement on the part of the supplier.1 From the competition perspective, as will be discussed in more detail in the next chapter, the essential facilities doctrine, and the concept of indispensability, have become established parts of the competition and IP landscape with respect to market power. As noted in the last chapter, standards agreements, and pools which members of a standard establish to enable members to comply with the standard, also include provisions relating to ‘essential’ – for example the ETSI IP Policy considered in the preceding chapter.2 The ETSI policy defines essential as meaning that it is not possible by technical (but not commercial) means, taking into account normal technical practice and the state of the art generally available at the time of standardization, to make, sell and engage in acts which comply with a standard without infringing IP, ‘[f]or the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL’.3
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