Patent Injunctions, Standard Essential Patents and Patents Essential to de Facto Standards: European, German and Korean Perspectives

摘要

Patent injunctions against unlicensed defendants who implement a patented technology standard may produce exclusionary effects that are anti-competitive. Should it make a difference whether the patent in question (1) involves a technology standard developed under the auspices of a standard-setting organisation (i.e. a standard essential patent or SEP); or (2) covers an invention that is incorporated into technology standard without going through this standard-setting process (i.e. a patent that is essential to a de facto standard or "de facto essential patent")? The potential anti-competitive effects are the same in both categories of patents, yet the legal frameworks of jurisdictions that have considered these legal issues appear to differentiate between them. This article examines the validity of distinguishing between these two groups of patented standards, using examples from various jurisdictions to illustrate the bifurcated approach that has been taken towards placing limitations on the patent holder's freedom to seek injunctive relief.