December 1, 2008

Patent disclosure and SSO

The court has agreed that failure to disclose essential patents required by the standard setting organization is considered to be a waiver of the patent rights in relation to the standard.

It is interesting to read that the court in Qualcomm Inc. v. Broadcom Corp (Fed. Cir., Dec. 1, 2008) has taken the issue of patent disclosures in standard setting organizations to a new level. There is a separation between organizations where you are required to license your essential patents by default when entering in to the organization and the cases where you explicitly have to disclose the ones you have knowledge about. It sounds reasonable to agree with the court that even if there were no explicit obligaton to disclose, the members of JVT understood it as if they were to disclose. By not disclosing, Qualcomm put the other members in a false understanding of the position when they were deciding upon the new standard.

Since standards are as important as they are, especially in the ICT sector, they also have to be treated as if they are. The economic impact of setting a standard, although a RF one in this case, could be enormous and the investments huge. Therefore we need more understanding of this impact, both in the legal system but more importantly in the SSOs themselves.

I know that there is a rising interest from the actors to look in to the patent policies which I think is good. One could of course ague if it should be constructed to be RF or FRAND, but most importantly is that it is clear to the actors in the organization to have a common understanding. This is where the decision in this Qualcomm case might be a pointer in the direction of more clarity.

Johan Örneblad

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