All good things mustn’t come to an end: Reigniting the debate on patent policy and standard setting

Abstract

The mobile evolution has transformed into a digital revolution. People around the world, along with hundreds of objects surrounding them, will be connected to networks as well as to one another, through significantly faster, more robust and secure wireless communications. A range of industrial sectors will ride on this transformative digital wave, from automotive, healthcare and energy, to urban infrastructure, agriculture and entertainment. To facilitate this inevitable change, reliable networks running on technology standards enabling them, will be needed. This brings to center stage the critical role of the patent system that incentivizes technology innovation, and the antitrust laws that ensure that market competition facilitating innovation is safeguarded. It is no secret that SSOs have played a key role in changing the landscape of the information and technology industry; their membership comprising of Standard Essential Patent (SEP) holders on one hand and implementers on the other. While the SEP holders are involved in research & development (R&D) and look to maximize their earnings from licensing out their SEPs, the implementers look to seek licenses from SEP holders on terms that are Fair, Reasonable and Non-Discriminatory (FRAND), in order to use the patented technology in the manufacturing of standard-compliant end-use products. However, at least in theory, an SEP holder can always engage in opportunistic behaviour in charging higher royalties from the implementer for licensing out the technology once the technology is locked into a standard, than the real worth of the technology at the time of creation of the standard by the SSO. It was to address these concerns that the Institute of Electrical and Electronics Engineers introduced a few changes to their IPR policy in early 2015.