Standard Essential Patent

A patent is essential to a technical standard ("BEN" or "SEP" in English, Standard Essential Patent) when the implementation of the patented invention is required by that standard.

Article 6 of the ETSI IPR Policy defines "ESSENTIAL" in the context of IPR (Intellectual Property Rights) as follows: "‘ESSENTIAL’ means that it is not possible on technical (but not commercial) grounds, taking into account normal technical practice and the state of the art generally available at the time of standardization, to make, sell, lease, otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a STANDARD without infringing that IPR. For the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL." Similarly, the European Commission considers that "a patent protecting technology essential to a standard is called a 'standard essential patent' (SEP)" and that "SEPs protect technologies that are essential for compliance with technical standards and for the commercialization of products based on these standards" (Communication from the Commission to the European Parliament, the Council, and the European Economic and Social Committee, November 29, 2017, COM(2017) 712 final).

The nature of this patent is counterbalanced by the holder's commitment to the standards organization to grant licenses under so-called "FRAND" conditions.

When a company holds a SEP, it can control the use of a technology and extract royalties from companies wishing to use it. However, misuse of SEPs can lead to significant legal problems (e.g., abuse of dominant position, FRAND requirements, patent litigation).