Transparency Issues with Standard-Essential Patents

Brussels, August 2, 2021 – The Fair Standards Alliance has long advocated for increased transparency in licensing negotiations with respect to standard-essential patents (SEPs) subject to a commitment to license on fair, reasonable, and non-discriminatory (FRAND) terms. Transparency at all stages—from before a patent is selected to be included in a standard by a standard-setting organization (SSO), to when, whether, and how the patented technology is included in the adopted standard, to the eventual licensing of declared SEPs and accompanying negotiations —is important to ensuring a robust and vibrant SEP ecosystem.
This Position Paper explores three elements of transparency as it relates to FRAND-encumbered SEPs: (1) identification of patented technology that may encumber the draft standard, (2) essentiality assessments to determine whether a patent that has been declared essential truly is, and (3) the accessibility of necessary information during licensing negotiations between SEP-holders and potential licensees and beyond.
The FSA’s position is that:
SSOs should adequately document licensing commitments relevant to potential standards essential patents to facilitate technical decisions about the content of the standard, and should encourage updating relevant information where appropriate.
Third-party essentiality assessment could be helpful if carefully structured to be truly independent and avoid bias or any unintentional harm. Current industry driven efforts can be useful tools to learn more about the benefits, challenges, and potential of essentiality assessments before the Commission decides on a course of action.
SEP-holders should provide key information to potential licensees during licensing negotiations without insisting on burdensome secrecy obligations.

Download the full position paper here

Share this article with your friends