is the Managing Director of Oxfirst Ltd, a law and economics consultancy. She has held lectureships (called ‘Assistant Professor’ in the US Academy) in law and international political economy with Oxford and Edinburgh University and served as an economist to the United Nation’s World Intellectual Property Organization, the OECD and McKinsey.
As the battle over the adequate forum for Ericsson v. Samsung continues, the question arises as to how the court will eventually deal with the valuation of the standard essential patents (SEPs) at stake. Here, the U.S. courts are at an advantage. After all, the United States has from the outset illustrated global thought leadership on the valuation of SEPs. Historically, courts have accepted two principal methods to determine the value of SEPs: the Comparable Licenses Approach and the Top Down Approach. These methods have come to be seen as compatible with the Georgia Pacific Criteria, which set out the core valuation principles in the United States and, increasingly so, even beyond U.S. borders.
Standards such as WiFi, GSM, 2G, 3G or 4G/LTE have been central to connecting the world. During the Covid-19 crisis, it was thanks to the technologies these standards enable that the global economy did not totally collapse. As we “zoomed” our way through self-isolation, the UK Supreme Court issued a landmark judgment, as reported by IPWatchdog. The decision addresses the cross-border enforcement of standard essential patents. Standard essential patents (SEPs) need to be addressed on FRAND (fair, reasonable and non-discriminatory) terms. FRAND aims at addressing anti-competitive conduct that can stem from matching patent law with standardization. Because these standards enable interconnectivity, they are of great importance.
Certainly, patents that read on a potential cure for COVID-19 deserve special treatment. After all, the cure for COVID-19 is not only crucial to save lives all over the world, but also to avoid the collapse of the global economy. Yet, what such special treatment might look like and how special a treatment is necessary is where opinions diverge. In the United States, activists demand that the government should have the rights to the anti-retro viral drug, ‘Remdesivir’. The Open Covid Pledge proposes that all IP related to COVID-19 should be made freely available. Its founding adopters were technology companies such as Facebook, Microsoft, Intel, IBM and Amazon. In contrast, among pharmaceutical companies, the idea of giving up all related IP for free has been viewed critically. With this in mind, the question is therefore not whether patents related to COVID-19 should be given away for free or not, but rather how the profit motive can be managed in public- private partnerships for the benefit of public health.