Standard essential patent

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Information about Standard essential patent

Published on June 3, 2016

Author: altacitglobal

Source: slideshare.net

1. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com STANDARD ESSENTIAL PATENTS (SEP) R.LAKSHMI PAVITHRA Patents & Designs Department

2. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com •TRIPS had considerable effect on Patent Law in India and SEP is one of them. •With increase in technology, the importance of SEPs was also leveraged. •STANDARD ESSENTIAL PATENT?? An essential patent or standard-essential patent is a patent that claims an invention that must be used to comply with a technical standard. INTRODUCTION

3. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com SEP- EXAMPLE •Mobile swiping technology “was” an SEP . A patent that protects technology essential to a standard is called a standard-essential patent It is impossible to manufacture standard-compliant products such as smartphones or tablets without using technologies covered by one or more SEPs

4. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • There is a world of difference between essential and non- essential patents! • This is because, generally, companies can invent alternative solutions that do not infringe a non-SEP (whereas they cannot design around a SEP). • One major area where SEPs are haggled across – Mobile and Communication technology. ESSENTIAL AND NON ESSENTIAL PATENTS

5. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • It all started with ERICCSON!!! (Ericcson Vs Micromax) • Patentee is required to license the technology on terms that Friendly, Reasonable and Non discriminatory popularly known as FRAND terms. • Thus in most SEP cases the court’s role is to ensure that the holder of a Standard Essential Patent (SEP) does not abuse the dominant market position. • SEP litigation cases are the result of overlapping ambit between patent law and the competition law. CASE STUDY

6. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • SEPs holders should be committed to (i) license their SEPs and (ii) do so on fair, reasonable, non-discriminatory (FRAND) terms, it is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs if the licensee is willing to take a licence on FRAND terms. • No statute defines what is fair, reasonable and non-discriminatory !!! FRAND TERMS- CHALLENGES FACED

7. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • Inherent tussle regarding the royalty rates between the company who spent its resources in R&D to develop the Standard and the company that seeks to license it. • the SEP license holder tends to approach court for filing infringement suit against licensee who are found not obeying the terms of license while on the other hand the licensee in turn approach the Competition commission of India for filing complaints for the “abuse of dominant position” and “anti-competitive agreement” against SEP holder. • Hence leading to a tug of war between competition law and patent law FRAND TERMS- CHALLENGES FACED

8. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • Threat of injunction should not be used by the SEP holder. • Therefore, an injunction should only be claimed when the licensee is unwilling to pay the judicially determined FRAND royalty . • Jurisdiction of Competition Commission and Competition Law with respect to SEPs should be clarified. • In the disputes related to SEP it would be prudent if adequate trial is given to both the parties and rates are determined by the Court without prejudice to any party and keeping in mind the interests of the end consumers at large. SEP MADE BETTER!!!

9. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CONCLUSION SEPs are powerful weapons in the hands of the techno giants. They should understand that they have moral obligation towards the society to put those weapons to constructive use for the betterment of the society at large.

10. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com

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