Standard Essential Patents, Trolls and the Smartphone Wars: Triangulating the End Game

Daryl Lim, The John Marshall Law School

9/02/2015
(Original Publish Date: 11/18/2014)

Few legal issues in recent years have captured the public’s attention more powerfully than litigation over standard essential patents (“SEPs”). This Article explains how SEP litigation overlaps with two other major centers of patent litigation - litigation involving smartphones and patent assertion entities (“PAEs”). It offers a reasoned analysis of key developments and offers predictions on the end game. The Article observes that attempting to pre-empt patent hold-ups by imposing blanket ex ante disclosure obligations and royalty caps on standard setting organizations (“SSOs”) is misdirected and counterproductive. Instead, the solution lies in clear and balanced rules to determine “fair, reasonable and non-discriminatory” (FRAND) royalties and injunctive relief. This solution will help parties make more realistic assessments of their options and help adjudicators resolve SEP disputes.