As noted in an earlier post, recently IAM Magazine published an article by Ruud Peters and Nikolaus Thumm entitled “A six-point plan for a new approach to assessing SEP essentiality”. The authors explored six core questions, with the fourth asking: “Who should pay for essentiality checks”? Peters and Thumm replied that the SEP holders should pay because they benefit the most. This approach, which is unduly simplistic and lacks balance, could undermine critical investments in European R&D.
The developers of mobile wireless standards undertake substantial upfront costs to foster new generations of technology. Innovators bear the cost of R&D, then the cost of the standardisation process, and finally the cost of the patenting process. In sharp contrast, implementers get access to technology, developed by others, and start making profit using those technologies well before they incur the cost of a licence.
If essentiality assessments are deemed to be a necessary element of SEP licensing, a proposition that not all would agree with, then it is imperative to find a fair and balanced way to share the costs. Sharing the cost would ensure that both parties have an incentive to act in good faith and ensure that essentiality checks are efficient and brought to a prompt resolution. If the costs are borne by only one party, there is a risk that the other party will engage in opportunistic practices to drag on the essentiality checks.