Patents to which one must have ownership or a license to practice a particular technology, or to comply with a particular standard. Most pioneer patents, if the claims are properly drafted, will be essential patents; incremental patents may be essential if they cover technically or economically vital improvements. Where two Essential Patents held by different parties preclude the other from using his invention, they are usually referred to as “blocking patents.” Technically Essential Patents can be distinguished from Commercially Essential Patents. The term essential patent is most commonly used in the context of multilateral technical standards.
The European Union has a draft regulation targeting licensing practices with respect to Standards Essential Patents which was approved by the European Parliament (EP) approved on February 28, 2024 and can expected in some form (as of January 2025) to become EU law.
The regulation, as drafted would impose a number of duties on SEP holders:
- The establishment of a central electronic SEP register managed by the European Intellectual Property Office;
- A registration requirement – SEP holders must register their patents within six months of a new standard being entered in the register to enforce their SEPs;
- Fair, reasonable, and non-discriminatory (FRAND) determination – the SEP holder must initiate the FRAND determination procedure with the EUIPO before bringing a lawsuit before the courts of an EU member state; and
- Independent assessments of essentiality – independent evaluators will conduct random checks on the essentiality of patents, and SEP holders can voluntarily submit their patents for these checks.
See Standards, Mandatory, Compliance.