Joff Wild

The International Telecommunications Union - "the United Nations specialized agency for information and communication technologies" - has become the latest august institution to reveal its anxieties about the assertion of standards essential patents in litigation. A press release put out by the ITU today announces that it will be hosting a meeting on 10th October “between standards organizations, key industry players and government officials” to discuss “the worldwide surge in patent litigation and the growing lack of adherence to standards bodies’ existing patent policies”. Among other things, the meeting will focus on: “Potential improvements to existing policy frameworks, entitlement to injunctive reliefs, and definitions of what constitutes a royalty base.”

Bodies such as the European Commission and the US Federal Trade Commission have already expressed disquiet at the way standards essential patents are being dragged into the ongoing smartphone wars, while at the recent IP Business Congress in Portugal USPTO Director David Kappos made plain his worries too.

Clearly the ITU is not going into this meeting harbouring any doubts about whether there is a problem to address. The headline on its press release states: “Innovation-stifling use of intellectual property to be tackled.” Of course, the ITU provides absolutely no evidence that the litigation it is worried about does, in fact, stifle innovation – it just takes it as a given. So we can also be pretty confident about how the meeting will pan out on 10th October, though it would be nice to think that at least some of those invited to participate will be organisations and maybe even individuals who do not necessarily swallow the innovation-stifling spin hook, line and sinker. That’s not to say it is not true, just that some clear proof would be good to have.

Given the mounting outcry over the standards-essential patents issue, at some stage we can probably expect some kind of internationally co-ordinated concrete action to be taken. I am not sure what that will be or how it will work, but presumably the aim will be to make it much harder, or impossible, to secure injunctionsin cases where the patents concerned relate to FRAND.

Saying it, though, may well be easier than doing it. For example, one consequence of such an approach might be that patent owners would not get involved in standards in the first place. That could actually end up leading to more litigation, not less. Once a cry that “Something Must Be Done” goes up, the temptation is often to find a quick solution. And just as often that solution ends up being as bad, or even worse, than the problem identified in the first place.