Licensing of SEPs and Emergence of FRAND: International and Indian Perspective

Akshata Ramesh
Symbiosis Law School, Hyderabad, India.

Volume III – Issue I, 2021

Standard Essential Patents are certainly the backbone of creating a standardized industrial sector to that context whereby a patent would be necessarily infringed to set that standard. This universally accepted ‘standard’ in any sector is a concurrent and core requirement in bringing a product for commercial competition and viability. In simple words, the patentee has to necessarily grant licenses to manufacturers on the Fair Reasonable and Non-discriminatory terms (FRAND). Predominantly, most technological standards develop through voluntary organizations like the Standards Setting Organization (SSO) and standard developing organization. Different patent owners associate together to pool their resources and collaborate in setting a standard for the entire industry for coherence and uniformity in technologies like the potential 5G.

SEPs are an essence of the meaning of standard or nature in pooling the existing technologies. Investment in Research and development necessarily requires adequate returns on investments. Thereafter, contractual agreements take place between the SSOs and patent holders; however, this relationship has been questioned widely. The paper will hence focus on this issue, as well as the questions on SSO’s procedure in making arrangements and negotiation. Furthermore, the study unveils the theme of FRAND i.e., Fair, reasonable, and non-discriminatory. Evolving through a series of landmark judgments, the FRAND ranging has been fluctuating, because it can never be too high or low. At the same time, it is to be noted that the popularity of the standard is not considered for the patent holders’ rights. India needs to develop clarity in its patented technologies and create a framework on FRAND terms without relying on the other developed countries. 

Keywords: Standard essential patents, FRAND, SSO, patents


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