CONCEPT, TYPES AND FORMS OF ABUSE OF ESSENTIAL PATENTS IN PRIVATE STANDARDS

Abstract

Abstract. For the first time in Ukrainian legal science, the need to define the concept of standard
essential patent abuse is established and its definition is introduced. It is outlined that if
patent holder exercises its rights to standard essential patents, the purpose of it should be protection
of innovation through the possibility of reimbursement of research & development expenses
as well as reward for innovation, while contrary to that, in case of abuse of this right the
purpose is to gain market influence or dominance to conduct royalty stacking or exclude competitors.
While in the US and EU doctrines there have been attempts to distinguish types of standard
essential patent abuse, such attempts are not systemic and are inconsistent as to their types
and forms, classification of standard essential patent abuse to types and main forms of implementation
is suggested. The nature of such types of standard essential patent abuse as patent ambush
and patent hold-up is analyzed. The most common types of standard essential patent abuse,
such as refusal to license the respective patent, the use of injunctive relief and royalty stacking
are defined.
Key words: standard essential patent, patent hold-up, injunctive relief, royalty stacking, refusal
to license.