As creatures of policy language, different SDO definitions of essentiality must be given interpretive deference. Nevertheless, as scholarship and case law in this area expands, a number of common themes emerge in the interpretation of essentiality requirements. One such theme is the economic equation of essentiality with non-substitutability that has arisen in the context of patent pools. Another is the blurred divide between commercial and technical essentiality. A third is the practical necessity of assessing essentiality when hundreds of potentially essential patent claims are at issue. These issues, coupled with the recognized phenomenon of over-declaration, suggests that more efficient, rapid and cost-effective methods for assessing essentiality may be called for. Moreover, when strict legal interpretation of policy language is likely to yield absurd results -- as when a patent is deemed non-essential because a theoretically equivalent, but impractically costly, alternative exists -- the norms and expectations of the relevant SDO participants should be taken into account.
Cambridge Handbook of Technical Standardization Law - Antitrust, Competition and Patent Law (Jorge L. Contreras, ed., 2017 Forthcoming)