Standard Essential Patents(SEPs)

A standard essential patent (SEP) is a patent that claims an invention that is essential to a standard. These standards frequently refer to technologies which are protected under the patent regime.​

Standards are technical requirements or specifications that seek to provide a common design for a product or process.

Patents which are essential to a standard and have been adopted by a Standard Setting Organization (SSO) are known as SEPs.

In short, A standard essential patent (SEP) is a patent which can be properly mapped onto a mandatory industry standard such that a product which conforms to that standard infringes the patent.​

A standard essential patent starts out as a typical patent and becomes essential to a given standard usually when it is declared to be essential by one of the contributing participants of the standard.​

Over-declaration happens when a patent owner asserts that patents are essential to a standard, but the standard can be implemented without implicating the patents. This can result in companies negotiating and paying for licenses for which they don’t need to pay, and can have the effect of causing companies to overpay.​

The Bureau of Indian Standards (BIS)​

• Patent holdup​
• Royalty base​
• Royalty stacking​
• Availability of injunctive relief

As part of the standard-setting process, and sometimes as part of the process of declaring a patent to be essential to the standard, the contributors of a technology who own patents on the technology agree to license the patent on fair, reasonable, and non-discriminatory terms pursuant to the policies of a standards-setting organization, sometimes abbreviated as FRAND.​

• Fair: It is usually quite easy to recognize unfair licensing requirements, e.g., it would be considered unfair to demand concessions that are not part of the licensing deal from a licensee, or to tie the grant of the license to unrelated commitments. However, fairness is subjective and more difficult to define.​
• Reasonable: Also a subjective theory, a good benchmark for evaluating reasonableness would be to compare with general industry practice, especially when discussing licensing royalty rates.​
• Non-discriminatory: Licensees that are in similar situations should always receive the same terms and rates. If for some reason this doesn’t happen, there should always be some objective grounds for the difference in treatment.​

Yes, companies that hold SEPs may be required to license them to competitors under FRAND terms. This is because SEPs are considered essential to complying with industry standards, and withholding access to them could harm competition and innovation in the market. However, the terms of the license must be fair and reasonable, and non-discriminatory towards all parties seeking to license the technology. 

Violating FRAND commitments for SEPs can result in legal and financial consequences for a company. In some cases, a company may face antitrust litigation or regulatory action if they engage in anti-competitive behavior by withholding access to their SEPs or charging discriminatory licensing fees. Additionally, breaching FRAND commitments can harm a company’s reputation and relationships with industry partners, which can impact their ability to compete in the market. 

Standard Search Module significantly streamlines the search for standard essential patents by providing powerful search capabilities. The advanced search operators allow you to create complex queries, ensuring you find the most pertinent SEPs quickly. Moreover, the precise date filter helps you narrow down your search to specific timeframes, improving the accuracy of results. 

SEP patent licensing typically revolves around patents that are vital to industry standards. Given their essentiality, licensing terms for SEPs often need to be fair, reasonable, and non-discriminatory (FRAND), ensuring that all parties in the industry can access the technology without discrimination or prohibitive costs. Regular patent licensing might not be bound by such conditions. 

SEP consultants specialize in the intricacies of Standard Essential Patents. Due to the unique nature and importance of SEPs in various industries, expert guidance is often sought to navigate licensing negotiations, manage potential infringements, or understand the landscape of SEPs in a specific tech domain.

An SEP license provides a company with the legal authorization to utilize and implement certain patented technologies crucial to industry standards. This not only aids in avoiding infringement issues but also ensures compatibility and interoperability within the industry, fostering innovation and market growth.

While the foundational process of patenting remains similar, patenting an SEP (or patent SEP) includes an additional step where the patent holder declares to a standard setting organization (SSO) that the patent is essential to a particular industry standard. This declaration often comes with an agreement to license the SEP on FRAND terms.

While there isn’t a single global body overseeing SEP patent licensing, various regional and national SSOs play a role in monitoring and managing SEPs. Organizations such as 3GPP, IEEE, and ETSI are some of the SSOs that have frameworks in place for SEPs. Additionally, SEP consultants often stay updated with the evolving landscape and guidelines across different jurisdictions.