Courts Wade Cautiously Into Treacherous Standard-Essential Patent Waters

Cross-posted at WLF’s Forbes.com contributor page

After several preliminary rulings over the past six months, the federal courts are poised to wade directly into the murky waters of the “standards-essential patent” (SEPs) legal debate. What the courts decide will directly influence discussions and decisions regarding SEPs in other forums such as Congress, the International Trade Commission (ITC), and the Federal Trade Commission.

What is a SEP? The connection plugs for ethernet cables above are universally used for communications across many different computing platforms. The standardized plug arose from a voluntary standard-setting process under the auspices of a private organization. Prominent standard setting bodies include the International Telecommunications Union (ITU) and the Institute for Electrical and Electronics Engineering (IEEE). Patented technology or processes are regularly implicated in the practice of such standards. To prevent what is known as “patent holdup,” standard setting bodies require patents owners whose technology is used in a standard to pledge that they will license the use of those patents on “reasonable and non-discriminatory” (RAND; sometimes known as “FRAND”) terms. Without such promises, the SEP holders could demand exorbitant fees from manufacturers whose products utilize a standard. Continue reading “Courts Wade Cautiously Into Treacherous Standard-Essential Patent Waters”