Advisory group looks at patents’ inclusion in standards

Meeting at ITU headquarters in Geneva, 21-22 March 2013, the TSB Director’s Ad Hoc Group on IPR (IPR AHG) has continued making headway in its bid to ensure protection of the integrity of the standards-development process by clarifying aspects of ITU’s Patent Policy and related Guidelines– the Union’s main tool to manage the challenges associated with the incorporation of patents in standards (ITU-T Recommendations).

The licensing of standards-essential patents (SEPs) on reasonable and non-discriminatory (RAND) terms is a cornerstone of the standards-development process. The incorporation of SEPs on a RAND basis incentivizes the inclusion of cutting-edge patented technology in technical standards, while also ensuring that the holder of a SEP cannot abuse the dominant market position it gains from widespread adoption of a voluntary technical standard.

The IPR AHG has been active for over fiften years, providing a forum for experts to exchange views on IPR matters and offer advice on the best approach to the patent-standard relationship.

In recent months, certain stakeholders as well as competition authorities have raised concerns regarding the increase in standards-related patent litigation as well as the possible use of SEPs to exclude competitors from a market. American and European regulators have in addition expressed concerns with the possible use of SEPs to pressure standards implementers into accepting higher royalties in bi-lateral licensing negotiations – also referred to as patent hold-ups – an act which undermines the aims of RAND to the disadvantage of standards implementers, hurting the consumers ultimately shouldering these higher costs.

Against this backdrop, ITU held a high-profile Patent Roundtable in October 2012 which assembled all the key private-sector and regulatory players to unravel the source of SEP-related litigation and to plot the course to an appropriate remedy.

Acting on the conclusions of this Roundtable, the IPR AHG is currently undertaking an accelerated series of meetings, targeting two specific questions:

the conditions under which companies that have made RAND commitments should or should not be allowed to seek injunctions; and the clarification of the meaning of the word “reasonable” in the RAND context.

The next meeting of the IPR AHG will take place at ITU headquarters in Geneva, 25-26 April 2013.

A video message from the TSB Director to the IPR AHG can be viewed here.

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