Document Type

Book Chapter

Publication Date

Spring 2017


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.