Standard-Essential Patents (SEPs) and ‘Fair, Reasonable and Non-Discriminatory’ (FRAND) Licensing
18 Pages Posted: 30 Jan 2015
Date Written: January 29, 2015
FRAND-encumbered SEP owners find themselves in a complex situation because fetters are put on their limited period freedom to exclude others from making, using, selling or offering to sell, and importing the claimed invention in the country of grant. In this paper we discuss some of the issues involved in FRAND-encumbered SEP licensing and their possible solutions. In particular we suggest that SEPs be treated as a separate class of patents of national importance in patent acts for which specific rules are framed for dealing with injunctions; the creation of a SEP tribunal that would decide how best contemporary public interest would be served with minimal FRAND commitments; and government intervention in the form of “march-in” rights on behalf of all those in need of the SEP in question to prevent a potential or real economic crisis from arising due to a lack of sufficient number of licensees or acts of discriminate licensing by SEP owners, to keep the market competitive.
Keywords: patent, standard, SEP, FRAND, SSO, injunction, license.
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