UK IPO Launches Consultation on Standard Essential Patents

The UK IPO has issued an open consultation with a call for views in relation to standard essential patents. The consultation includes a wide range of questions relating to the relationship between standard essential patents and innovation, competition and market functioning, transparency, licensing and litigation. The closing date for responding to the consultation is 1 March 2022.

A standard essential patent (SEP) is a patent covering technology that is required (i.e. is essential) to implement a technical standard (such as 2G, 3G and 4G in the telecommunications industry). Conforming to a technical standard may allow devices from different manufacturers to operate together or to use the same infrastructure. Standard Setting Organisations (SSOs) bring participants together to evaluate technologies for inclusion in a new standard. Participants of SSOs enter into an irrevocable undertaking with the SSO to allow implementers of the new standard to obtain a licence to SEPs on fair, reasonable and non-discriminatory (FRAND) terms.

SEPs have grown in importance in recent years, and their applicability has spread beyond pure telecommunications applications to other areas such as connected vehicles and smart appliances. The English courts have been a popular forum for litigation relating to standard essential patents, and will likely continue to be popular, following the landmark decision from the UK supreme court in Unwired Planet v Huawei, where it was held that English courts can determine FRAND terms on a worldwide basis. More information on this case can be found in our briefing.

The issuance of this consultation indicates that the UK IPO is taking note of these developments. Anyone with an interest in SEPs is encouraged to contribute in order to have the opportunity to influence any future developments in the legal framework in this area in the UK.