Standard-Essential Patent (SEP)

Standards frequently make reference to technologies that are protected by patents. A patent that protects technology essential to a standard is called a standard-essential patent. It is impossible to manufacture standard-compliant products such as smartphones or tablets without using technologies covered by one or more SEPs. SEPs are different from patents that are not essential to a standard (non-SEPs), such as design patents, for example, which protect the design features of an invention. This is because, generally, companies can invent alternative solutions that do not infringe a non-SEP (whereas they cannot design around a SEP). For example the "slide to unlock" technology is covered by a non-SEP. Most smartphone manufacturers were able to develop different technologies for unlocking a smartphone screen which do not infringe the "slide to unlock" patent. This would not have been possible in the case of a SEP. There are thousands of SEPs reading on technologies implemented in various standards set by the SSOs. For example, the total number of SEPs declared to ETSI is 155,4748. More than 23,500 patents have been declared essential to the GSM and the "3G"or UMTS standards developed by ETSI9. These standards need to be implemented in virtually all smartphones and tablets sold in Europe. Given their essentiality to a standard, obviously SEPs are important for companies. They are also litigated more often than non-SEPs. (...) In the telecommunication sector, there was a noticeable surge in high profile patent litigation involving many important industry players such as Apple, Motorola, Samsung, Google and Microsoft. But as shown in the table below, litigation on the basis of SEPs also happens in many other industries. © European Commission

On this topic see the special issue "Standard-Essential Patents and Competition Law: An overview of EU and national case law"