Regulating standard essential patents in implementer-oriented countries: Insights from India and Japan

Abstract

This chapter argues regulations governing standard essential patents (SEPs) in the setting of implementer-oriented countries. In those countries, where few firms have volumes of SEPs, and a majority of firms received licenses, policies inevitably tend to seek weaker regime of SEPs. However, recent public policy struggles in India and Japan illustrate the difficulty of their fair and effective regulation. The authors investigated their recent experiences on SEP regulations to provide implications on public policies concerning the SEP issues. India, showing the constantly evolving SEP jurisprudence, published two consultation papers from the Department of Industrial Policy and Promotion and Telecom Regulatory Authority of India in 2016 and 2017. These documents stated the need for an appropriate measure to decide the injunction and reasonable royalty rate by referring several case laws and in-depth analysis of cases. They also proposed an introduction of an alternative dispute resolution (ADR) system. But no specific policy action has taken. By contrast, Japan, in which very few cases are disputed in their courts, attempted to introduce an ADR in 2017. Japanese government emphasized the complexity of SEP issues in the future industrial context and the rationality of the system for the fair competition between global SEP holders and small and medium entities. But they came under fierce criticism as the system potentially works as an implementer of compulsory licenses. By introducing the new ADR, Japanese government published a detailed report on major issues in this field. These experiences imply that even in implementer-oriented countries they should develop capacities of court judges and national competition agencies to provide fair and reasonable decisions and try to resolve information asymmetry as Japanese governments did. This Chapter attempts to explain the details of amendments to the IEEE IPR policy and analyse their impact on the incentives for innovation and dissemination of innovation in essential technologies that are enabled by a well-functioning SSO.