Literature Review is Corporate Social Responsibility

Literature Review is Corporate Social Responsibility
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Literature Review for Dissertation

 Standard Essential Patents (“SEP”) have recently gained a lot of significance in the telecommunication and automobile sector. Not just the global markets, but the judiciary across the world is also affected along with national politics. With the ongoing trends, various international organizations have tried to adopt a definition for these. In simple words, SEPs are patents that are essential to the implementation of an industry standard. The general vocabulary of the ISO/IEC Guide 2:2004 Standardization and related activities defines the term “standard” as ‘a document, established by consensus and approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for activities or their results, aimed at the achievement of the optimum degree of order in a given context’. So, in short, no implementer can manufacture goods incorporating a specific standard, without getting licenses from associated SEP holders for the use of their SEPs. There are pertinent questions that courts, the SEP holders, and implementers are faced with in this regard. Both the SEP holders and implementers have this issue whether they should approach the courts or not in the event of an infringement? If SEP holders are to approach the court, then should they delay in enjoining the infringer? In addition to the challenges associated with SEPs being a relatively novel concept, a major issue faced by the Courts during infringement litigation is whether to grant an injunction or not? This is directly connected with the inherent dominant nature of SEP holders and their irreplaceability in the market, because of which they are constantly in contradiction with the anticompetitive authorities. The courts have to not only decide whether to grant injunction but what should be an appropriate FRAND (Fair, Reasonable and NonDiscriminatory) royalty rate as well. As the above discussion establishes that the nature of SEP is such that there is a constant tussle between the implementer and the SEP holder. And there have been several authors who have attempted to provide policy prescriptions based on a more qualitative and empirical analysis of the SEP litigation ecosystem such as Lamley1 , Lipatov2 , Camesasca3 , Contreras4 to name a few. However, before we go into the details it is imperative that we understand the impact of SEPs on innovation and its compensation balance in the current law regime. There is a plethora of studies which have actively questioned the standardization regime that currently exists, especially the lack of participation from firms devoted to research and development(R&D), the special nature of SEPs, the inclusion of non-value adding patents in standard and the overall negative impact on innovation surrounding a certain standard. One of the earliest such studies on SEP was conducted by Bekkers, Bongard & Nuvolari5 , which concluded that at least in the case of W-CDMA(a telecommunication standard) the most important determinant of essentiality for a particular patent was the desirability of the patent holder to be a part of the standard-setting process rather than the value addition of the specific technology. They also claimed that their conclusions were general enough to be implemented in all spheres of patents where standard-setting is required. This provided an early indication of the market distortion due to the existence of a relatively non-valueadding patent into a standard. The ramification of the contemporary standard-setting landscape described by Bekkers, Bongard & Nuvolari6 , was recently delineated in another empirical study by Lemley and Simcoe7 in 2018, which argued that the majority of SEP litigation claiming infringement failed. They ascribe the overwhelming failure of NPEs (Non-Practicing Entities) in asserting the infringement of essential patents to the over disclosure of patents on part of companies, and the lack of any systematic mechanism facilitated by SSOs to check the essentiality of such patents.

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