Negotiating Issues between Patentees and Implementers on Licensing of Standard Essential Patents - A Comparative Analysis of Two CWAs

A standard essential patent is a patent that is unavoidable to be used when a product or service conforms to a technical standard. Many of standard-setting organizations (SSOs) have their respective patent policies on how to handle SEPs. The patent policy generally requires the SSO members who believe they hold SEPs to declare their intention to license SEPs to anyone under Fair, Reasonable And Non-Discriminatory (FRAND) terms. FRAND declaration obligates patentees to license the SEP but at the same time allows them to receive license fees on FRAND terms. However, SSO patent policies do not stipulate any specific licensing terms. As a result, disputes and conflicts between patentees and implementers over FRAND licenses of SEPs have been repeated and continue. In 2015 the Court of Justice of the European Union (CJEU) presented, in the judgment of Huawei v. ZTE (Europe, 2015), a framework for SEP licensing negotiations. It led to several countries establishing guidelines for dealing with and negotiating over SEPs, but they were not specific enough for reference in the negotiations. Many experts and researchers have discussed the useful negotiation framework, but the contents are diverse and there is no direction for consensus. The problem is that prior to those discussions, it has not been possible to determine what the current gaps between patentees and implementers are.CEN and CENELEC, the European SSOs, have published two different workshop agreements (CWA) to guide the negotiation of FRAND-compliant SEP licenses from the respective standpoints of patentee and implementer. In this paper, we note the fact that CWAs are the valuable documents that present both sides' comprehensive views on SEP licensing and we analyze the common points and differences between the two views, clarify the unresolved issues and their background, and add some considerations. With the advent of IoT and with SEP disputes spreading across multiple industries we believe that this analysis and discussion can help us grasp the gaps in opinion in advance and can be used to improve the efficiency in negotiations and dispute resolutions