Reporting on the Enforcement session in yesterday's Best Practices in IP 2013 conference (see earlier post
here), this blogger confessed himself to be unaware of the term "commercially essential patent", in contrast with technically essential patents which form the bedrock of technical standards. Speaker Luc Savage (Orange) has kindly emailed to explain the term in greater detail:
"Although applicable for non-standard related pool, in standard related pool, an Intellectual property right, such as a patent, licensed by the pool for a royalty must be essential to the standard. There are two approaches to the definition of “essentiality”.
The first more rigorous approach, “technically essential”, provides that the specification of the standard must read on the patent claim(s) in order to make a standard conformant product, i.e. there is no technical alternative to circumvent the patent claims, otherwise the patent would not be essential.
The second broader approach, “commercially essential”, provides that the patent will be considered essential if, “as a practical matter”, it would be infringed in making a standard conformant product, but there would be alternative implementation(s) where the patent would not be infringed. The notion of “commercially essential” is not well defined today, but I thought it was useful to address this new approach to patent pool".
Thanks, Luc, for taking the trouble to clarify this!
