Key Considerations For Global SEP Litigation - Part 1

Litigation involving standard-essential patents ("SEPs") is on the rise.  The now longstanding and disturbing impact of efficient infringement by recalcitrant implementers is the predominant cause of the increase.  As many patent licensing professionals have observed, would-be licensees appear increasingly unwilling to come to the negotiating table, despite acknowledging that they implement the standard(s) to which the SEPs are essential. 

There is a broad perception amongst implementers of standard-essential technology that the worst that can happen to an unwilling licensee—found to infringe a valid SEP—is that it pay the same fair, reasonable and nondiscriminatory ("FRAND") rate it would have had to pay if it had agreed to take a license in the first instance.  Accordingly, implementers often seek to exhaust all legal defenses to taking an SEP license before, reluctantly, taking one.  This is efficient infringement, and, in an attempt to quell this movement, SEP