Standard Essential Patents Expand Scope with EVs and AI in Focus

A recent two-day colloquia in New Delhi, jointly organised by the Centre of Law and Critical Emerging Technologies at ASIA and the Office of the Controller General of Patents, Designs and Trade Marks, brought together a distinguished panel of experts to delve into the evolving landscape of Standard Essential Patents (SEPs) beyond the traditional telecom sector.

The discussions centred on the increasing relevance of ICT standards and SEPs in emerging technologies like electric vehicles (EVs), healthcare, and artificial intelligence (AI), where existing telecom-centric frameworks are proving inadequate.

Several key challenges in SEP licensing for these emerging sectors were brought to the forefront. Hiroyuki Nakano, Senior Director at the Japan External Trade Organisation (JETRO), pointed out that over-declaration of patents often stems from uncertainty before standard finalisation. He further noted that traditional cross-licensing practices in Japan, once effective within single industries, are now less viable due to the cross-sectoral nature of ICT standards. The struggles faced by new entrants, particularly in automotive and healthcare, with complex SEP licensing were also highlighted.

The electric vehicle sector presented its own unique set of challenges. Anoop Jain, Chief IP Counsel and Head IPR at Ather Energy, emphasised the critical role of ICT standards in the electric vehicle (EV) sector, noting challenges such as non-standard charging connectors and the absence of interoperable infrastructure. He argued that existing SEP frameworks, designed for slower telecom cycles, lack the flexibility needed for rapidly evolving EV technologies and underscored that the imbalance in resources between global SEP holders and Indian startups hinders fair negotiations.

The complexities of SEP licensing were further elaborated by Parag Kar, Independent Consultant and former Vice President at Qualcomm, who stated that standards are crucial for scalability and interoperability, especially in telecom and emerging sectors like EVs and AI. While acknowledging the intent of SEP frameworks to prevent monopolies through FRAND commitments, he highlighted challenges like over-declaration, lack of transparency in SEP databases, and inconsistent royalty models.

The legal and policy landscape in India concerning SEPs in these new sectors was also a subject of intense discussion. Apoorva Murali, Partner at Shardul Amarchand Mangaldas & Co, acknowledged that Indian courts are well-equipped to adjudicate SEP disputes across various sectors by applying principle-based frameworks originally developed in telecom cases. However, she also stressed that transparent and non-discriminatory standardisation is essential for equitable technology access, ensuring that both incumbents and new entrants benefit while keeping consumer costs in check.

The roundtable sessions generated several proposed solutions to address these challenges. Jain from Ather Energy advocated for sector-specific SEP frameworks, royalty-free licensing pilots, joint licensing models, and policy incentives for small innovators, along with simplified compliance tools and awareness programmes to empower startups and ensure equitable access. Nakano suggested that India similarly consolidate its SEP jurisprudence into clear, accessible guidelines to support non-telecom firms navigating this space.

The geopolitical dimensions of SEPs were also examined. Amogh Dev Rai, Director of Research at the Advanced Study Institute of Asia, underscored that 'SEPs are increasingly being used as instruments of industrial policy and geopolitical strategy, with the US viewing standard-setting as potential market manipulation and China leveraging it under initiatives like 'Made in China 2025'.

He also pointed to aggressive licensing tactics by Chinese courts and called for a TRIPS-like renegotiation and the establishment of economic forums to guide SEP policy.

Shreya Sampathkumar highlighted that while India’s SEP jurisprudence is developing, it remains fragmented and tilted in favour of patentees. She pointed out the disconnect between competition law and patent law and recommended empowering the CCI, formalising negotiation processes, promoting transparent licensing, and fostering MSME participation through industry collectives and early patent disclosures to create a more balanced system.

In his concluding remarks on the first day, Prof. Bakulesh Khamar, the Chair of the session, emphasised the need for India to transition from a reactive to a proactive approach in standard-setting, particularly in the realm of disruptive technologies. He also recommended linking royalty payments to profit rather than turnover and establishing domestic guidelines to ensure broader and more equitable access to essential technologies.

On the second day of the colloquium, speakers included Dr. Igor Nikolic, Director, IP Policy & Advocacy at Nokia; Sheetal Chopra, Director IPR Policy at Ericsson India; Rajiv Choudhary, Founder of Tech Law Associates; Karmanya Sareen, Senior Partner at Kommit Technologies; Shivanghi Sukumar, Partner at Axiom5; Isha Suri, Research Lead at the Centre for Internet and Society; Prof. Enrico Bonadio, Professor of Intellectual Property Law at City St George’s, University of London; Aman Sinha, Law Researcher at the Intellectual Property Division of the Delhi High Court; Prof. Suma Athreye, Professor at IIT Delhi; Gaurav Sawant, Associate Director at Clarivate; and Ayush Srivastava, Senior Associate at Dentons Link Legal.

The second day of the colloquium focused on the legal complexities and market dynamics of SEP licensing. Experts emphasised the need for aligning Indian standards with global benchmarks and fostering innovation through mutual negotiations rather than litigation. Discussions highlighted regulatory uncertainties, the importance of clear definitions in tech policy, and the need for inclusive, user-centric governance models. Proposals included the creation of an Indian Sovereign Patent Fund, compulsory licensing to prevent monopolistic control, and sector-specific licensing models. The role of Alternative Dispute Resolution (ADR) in SEP disputes was also underscored, with calls for updated legal frameworks and fast-track arbitration.