Saturday, November 25, 2017

Japan defers the introduction of SEP ADR system

As introduced in the previous article, Japan discusses the solution to dispute over standard essential patents (SEP); for example, the introduction of the Japan Patent Office (JPO) ADR system to determine appropriate license fee of SEP and the development of the SEP license negation guidelines.

However, the SEP ADR system is likely to be deferred. The document (available only in Japanese) distributed for the committee meeting to be held on November 27 2017 provides reasons for the deferment: for example, it cannot resolve dispute globally because the award system is applied to only Japanese patents, and the JPO is questioned about its ability to set out appropriate license conditions in individual cases. The government thinks introducing the SEP ADR system is difficult unless these problems are solved.

Instead, it suggests to extend the JPO’s advisory opinion service on the technical scope of a patented invention, referred to as ‘HANTEI’, to indicate whether or not a patent in question is a standard essential patent.

In addition, the SEP license negation guidelines for which the public opinions were requested worldwide is expected to be published in Spring 2018. However, it just organizes trend of legal precedent of the world on SEP dispute, and shows elements to consider in determining reasonable royalty rate to improve predictability, but not indicate specific royalty rate.

The outcome of the committee is going to be realistic but looks to be considerably toned down from the initial challenging goal. Now the interest will shift to the SEP guidelines which the European Commision is planning to release.

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