A standard essential patent (SEP, also known as a standard patent) is a patent claiming an invention that must be used to comply with a certain technical standard. Abuse from SEP rights holders limiting competition has drawn attention from jurisdictions around the world.
Since the Anti-Monopoly Law (AML) took effect in 2008, antitrust authorities and courts have proactively explored how to regulate SEP abuse under the AML. The Huawei v InterDigital (IDC) patent licensing discrimination cases and the National Development and Reform Commission’s (NDRC) administrative decision against Qualcomm are recent examples that provide rights holders with meaningful guidance on how to reasonably exercise their patent rights.
Defining the market
In Huawei v IDC, Huawei alleged that IDC was abusing its dominant market position. Shenzhen Municipal Intermediate People’s Court and Guangdong Provincial Higher People’s Court, the courts of the first and second instance, supported Huawei’s position that “the collective licensing markets for 3G wireless communication standards (WCDMA, CDMA2000 and TD-SCDMA) SEPs held by IDC in China and the US constitute separate relevant markets”.