Matteo Sabattini is a Director of IP Policy for Ericsson. Sabattini also serves as Senior Vice President of Standards for the Licensing Executives Society (USA and Canada), is a Member of the Intellectual Property Committee of the IEEE-USA and is Technical Policy Coordinator for IEEE Region 2.
Judge David Folsom served on the Eastern District of Texas, from April 14, 1995, to March 17, 2012. Judge Folsom presided over cases in the Texarkana, Marshall, and Sherman divisions and served as Chief Judge of the Eastern District of Texas from January 1, 2009, to December 31, 2011. During his 17-year tenure, Judge Folsom conducted over 250 trials, presided over hundreds of patent cases, and held approximately 75 claim construction hearings.
Innovators invest large sums creating technologies that are ultimately adopted as standards; technology implementers build upon. Not surprisingly, innovators want to be paid. Equally unsurprising, implementers want to pay less than innovators seek to charge. Both are necessary to have a complete and thriving ecosystem. This panel will discuss the current state of the SEP ecosystem at large, internationally. Can implementers and innovators co-exist and get along without litigation?
Patent pools are simply an agreement between two or more patent owners to license their patents, or a subset of a particular portfolio, to third parties. Often, patent pools are associated with complex technologies that require numerous complementary patents in order to provide efficient technical solutions, such as in the standard essential patent (SEP) space. Patent pools have been the subject of both legal and an economic debate over the years, sometimes in vogue and other times challenged by regulators.
The next industrial revolution will not only impact the smartphone and computer industries, but will spread to many more industrial verticals. The Internet of Things is among the industries most likely to be impacted by the next wave. While licensing SEPs in the telecom industry is well understood, licensing SEPs will be more difficult outside of the smartphone industry. With fundamental disagreements about where in the supply chain licenses should be taken.
Nowhere in the IP world is ADR more appropriate than for SEPs. For those parties wanting to conclude a FRAND licensing agreement without the uncertainty of lengthy, contentious, and unpredictable SEP litigation, ADR provides a tailored scope of dispute, choice of law options, confidentiality, international enforceability of arbitration awards and leeway to structure the procedure, not to mention the availability of mediators and arbitrators who are experts in the law and substance of the dispute.
What is the meaning of fair, reasonable and non-discriminatory? The terms are easy to say, but difficult to parse. Even more difficult when licensees refuse to engage patent owners in good faith negotiations. Do licensees who refuse to enter into good faith negotiations forfeit FRAND? Should they? Furthermore, the idea of FRAND being a limit on patent damages raises numerous sub-questions. Can entitlement to FRAND be lost, for example where the licensee is unwilling? If so, can entitlement to FRAND be regained?
Standard Essential Patents are at issue in various U.S. forums, from district courts, to the International Trade Commission, to the Patent Trial and Appeal Board, and ultimately all the way to the Federal Circuit. Few issues are as hotly litigated as the question about an entitlement to an injunction. Innovators believe injunctions and exclusion orders are absolutely necessary. Not surprising, technology implementers have a different viewpoint altogether on the appropriateness of injunctive relief.
Most market experts predict dramatic changes for the auto industry. The sector will likely be heavily affected by new sustainability and environmental policy changes, as well as by upcoming regulations on security issues. These forces will give rise to disruptive technology trends, such as driverless vehicles, electrification and interconnectivity. This will require the integration of highly patented standardized technologies, thereby creating economic risks and uncertainty for vehicle manufacturers.
Consistent with the New Madison Approach, the Trump Administration Antitrust Division took a number of initiatives aimed at reducing perceived new antitrust risks associated with widely employed patent licensing practices (particularly those touching on standardization). The Delrahim Antitrust Division from 2017 through 2020 filed more than 40 amicus briefs or statements of interest in antitrust cases. It amassed a respectable box score: courts accepted the Department’s position in 15 cases and disagreed in two cases.