A note on the neglected issue of reverse patent holdup

Abstract

Dr Ashish Bharadwaj is Assistant Professor at Jindal Global Law School and Director of Jindal Initiative on Research in IP and Competition (JIRICO) at O.P. Jindal Global University, India. The problem of reverse patent holdup or patent holdout arises when an implementer uses a standard-essential patent (SEP) without initially obtaining a licence from the patent holder based on the reasoning that the amount charged is in violation of the FRAND agreement. This issue has been a significant problem in the mobile communications industry because of the growing need for connected devices to use new and improved standards that involve multiple patents. This article briefly presents the position on reverse patent holdup of the courts of the United States, the European Union and India. The licensing practices prevalent in the industry, based on FRAND terms, have a major role to play in ensuring that the delicate balance between sufficiently rewarding innovators and ensuring uninterrupted access to essential technologies is not jettisoned.