UK Government publishes responses to Standard Essential Patents call for views

A patent that protects technology which is essential to implementing a standard is known as a standard essential patent (SEP). The number of declared SEPs doubled on average every five years between the early 1990s to 2014 [see here page 61, figure 10.1]. As of 2020, around 95,000 patents have been declared essential for the 5G standard. 

The UK IPO has been conducting a call for views to investigate whether the ecosystem around SEPs is functioning efficiently and effectively and strikes the right balance for all entities involved, in order to decide whether government intervention is required.

The call for views ran for 12 weeks between December 2021 and March 2022 and received 56 written responses. The UK IPO also held a number of round-table events with various stakeholder groups including SEP holders, implementers, legal and academic organisations, and sector and innovation networks. 

On 5 August 2022 the UK IPO published the responses to the call for views. Summarised thematically, the six main themes were: 

 

1. The Relationship between SEPs, innovation, and competition, and what actions or interventions would make the greatest improvements for consumers in the UK 

2. Competition and market functioning 

3. Transparency in the system 

4. Patent infringement and remedies 

5. Licensing of SEPs 

6. SEP litigation  

Overall, the responses from both SEP holders and implementers reported problems related to the efficiency or effectiveness of the ecosystem around SEPs. However, there was little consensus on the nature, extent, causes, and impact of problems in this area, with SEP holders and implementers often advancing opposing arguments in response to the questions posed. There was also little consensus on the need for the government to intervene. As such the IPO stated that more time will be taken to “assess the issues and, as appropriate, consider the merits of the proposals submitted.”

The IPO’s Chief Executive Tim Moss said: “We recognise there are many different interests to consider, which is why we began by asking broad questions to establish what the issues are. We can now narrow these down as we move forward, and ensure the IP framework is striking the right balance for the maximum benefit to UK innovation.” [Full press release here.] The findings will be reported to UK ministers in 2023, and any significant policy interventions will be subjected to public consultation.