Patent wars could be limiting innovation in the smartphone market amid uncertainty over what constitutes fair, reasonable and non-discriminatory (FRAND) prices, a leading patent expert warns.
Colin Fowler, intellectual property lawyer at specialist law firm Rouse, says a meeting of the ITU to discuss whether current patent laws are adequate is a good step towards addressing the seemingly long list of patent battles going on in the mobile device market, but notes the roundtable discussion will have little impact on shipment injunctions in the short term.
“The main problem appears to be the uncertainty as to what reasonable and non-discriminatory (RAND), or fair…actually means in a given situation,” Fowler says, noting that technical patents often cover technology advancements that are important to advance the overall market to the benefit of consumers.
Part of the problem stems from differences in the way courts define which standards are essential to the operation of a technology, which triggers a requirement for FRAND rates. Fowler notes that standard essential patents (SEPs) “are, by definition, available for licensing and as such the issue is what the terms of the license should be. Given that, injunctions ought not to be available pending resolution of the licensing terms.
“If products can be kept off the market pending that determination, then SEPs could actually hinder innovation,” Fowler argues.
However, the IP lawyer believes the ITU roundtable is a step in the right direction towards improving the current situation of endless patent battles. “[C]onsumers and the industry as a whole will suffer if the standards needed to deliver the ‘next big thing’ are held up,” he warns.