Law360 recently published an article by David Kappos , former director of the U.S. Patent and Trademark Office, describing and analyzing the Japan Patent Office’s final draft of its "Guide to Licensing Negotiations Involving Standard Essential Patents." We agree with Kappos that the guide reflects a balanced approach to issues involving standard-essential patents subject to a commitment to license on fair, reasonable and nondiscriminatory terms. We also agree that the guide should serve as a valuable resource to both SEP holders and potential licensees. However, some of the article’s characterizations of the theoretical and practical issues underlying SEP disputes are misguided.

Originally published in Law360 - August 27, 2018.