At the end of 2021 we reported that the UK Intellectual Property Office had launched an open consultation on Standards Essential Patents (SEPs). The Call for Views sought the views of stakeholders from across the SEP ecosystem on the issues and challenges they faced. The Call for Views was intended to inform the Government as it considers whether the existing UK framework for SEPs is functioning efficiently and strikes the right balance between protecting rights holders while also encouraging innovation, or whether government intervention might be needed to achieve these objectives.
The UKIPO published a Response to the Call for Views on 5 August. The Response covers:
- the relationship between SEPs, innovation, and competition, and what actions or interventions would make the greatest improvements for consumers in the UK
- competition and market functioning
- transparency in the system
- patent infringement and remedies
- licensing of SEPs
- SEP litigation
The UKIPO received over 50 written responses to the Call for Views, with perhaps as just as many opinions on the various challenges facing stakeholders and the impact these challenges have in practice. While respondents pressed the importance of standards and SEPs for innovation generally, and for consumers, SEP holders and implementers alike also highlighted problems relating to the efficiency and effectiveness of the wider SEP ecosystem. Unfortunately, however, there was little consensus on the nature, extent, causes and impact of the issues. There was also little consensus on the need for government intervention.
In a statement accompanying the Response the UKIPO's Chief Executive, Tim Moss, acknowledged the lack of consensus in the evidence collated thus far commenting:
"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."
Turning to the proposed next steps, the UKIPO stated:
“Given the breadth of issues raised and the divergence of the views on the case for government intervention, the IPO will require a further period while we assess the issues and, as appropriate, consider the merits of the proposals submitted. During this period, we will engage with businesses and others to ensure we have understood their concerns and seek further evidence where needed. We will report our findings to UK ministers in 2023 and would expect any significant policy interventions to be subject to consultation."
In a sentiment that resonates with comments made by Lord Justice Arnold in the recent Nokia v Oneplus/Oppo decision which we discuss in our article - UK courts maintain jurisdiction on FRAND cases - the UKIPO also acknowledged the global nature of the SEP ecosystem and committed to continue its engagement at an international level in any efforts to address issues relating to SEPs.
The Response has highlighted the size and complexity of the issues which underpin the functioning of a workable SEP framework, and it is perhaps foreseeable that considerable amount of time and thought will need to be dedicated to untangling those issues in order to optimise that framework to support innovation and fair competition. We will report on further developments in due course.