Standards, Patents, and Antitrust Policy: The Road Ahead

Standard Essential Patents (“SEPs”) have been at the center of a controversial debate for almost two decades. Recent developments have provided clarity on some of the most disputed issues. Courts and agencies across various jurisdictions have recognized that opportunism may occur both on the side of the SEP holder and on the side of the implementer. They have also reached consensus on issues such as the availability of injunctive relief for SEPs and the limited role of antitrust in addressing what are essentially contract disputes. In addition, courts have adopted market driven approaches when valuating SEPs, such as relying on comparable licenses, as well as when addressing questions regarding a patent holder’s freedom to select the most efficient licensing level for its patent portfolio. The convergence in approaches adopted across different jurisdictions provides the much needed clarity in a field that, for a long time, has been characterized by a divided and polarized debate.

By Kirti Gupta & Urska Petrovcic¹

I. INTRODUCTION

The last decade has seen an increasing and evolving focus on technology standards, the licensing of patented technologies related to these standards, and the role of antitrust in patent licensing disputes. The debate has been a lively one – fraught with conflicts over the most fundamental issues and significant changes in policy. Several theories dictated the early debate. Some were empirically tested and rejected. What has