The Fountainhead and de Standard Essential Patents.Trading and Rating Systems

Abstract

Through the present work it is tried to demonstrate that within the system of negotiation proposed by the best doctrine and assumed by the Communication from the Commission (Setting out the EU approach to Standard Essential Patents. Brussels, 29.11.2017 COM (2017) 712 final), the evaluation of the Standard Essential Patents (SEP) must necessarily distinguish three essential elements: (1) The minimum and maximum in said valuation. (2) The negotiation markup. And (3) The peculiarities of the market and of those who intervene in it. And therefore, the valuation cannot be, in any case, the framework of a negotiation that may be anticompetitive for the inventor, for the implementer or for both. It is therefore proposed to establish the valuation systems (methods) and establish minimums and maximums based on criteria such as the market where the action is taken, the marginal costs and revenues of those involved in the negotiation and the incentive yields. After a brief introduction to situate ourselves in the subject (Chapter 1), in Chapter 2 we analyze the problem of negotiation from positions that pretend to take advantage of the system (hold-up and hold-out) to obtain competitive advantages in relation to patents essentials in Chapter 3; the negotiation systems are contrasted with the systems of valuation of these patents, introducing an analysis of the methods used by the Courts and considered by the doctrine in Chapter 4. Chapter 5 necessarily concludes with the establishment of rules for the setting of the limits (above and below) that will have to be considered in any negotiation or valuation of these patents.