If it works, why fix it?

Publication details

Robin Jacob, ‘If it works, why fix it?’ [2026] IPQ 30.

Abstract

Regulators from time to time get the idea that there is something so wrong with the system for Standard Essential Patents and that they should do something about it. A recent example was the now dropped European Union (EU) proposal for a mediation centre in the European Union Intellectual Property Office (EUIPO). Most recently is the UK Intellectual Property Office (IPO) proposal that the cost-capped intellectual property court, the Intellectual Property Enterprise Court (IPEC), or, failing that, some specially constituted tribunal, should determine Fair, Reasonable, and Non-Discriminatory (FRAND) rate disputes. Its principal concern is small and medium sized enterprises, postulating (without any evidence) that the current Standard Essential Patent (SEP) system is deterring them from innovation. Other concerns were raised, such as that things are currently shrouded in obscurity and that dispute resolution is costly and time-consuming. The IPO issued a Consultation Paper about its proposal containing a series of questions. The questions were of its own devising, without any consultation of, for example, the judges, SEP holders or users—not even Small and Medium-sized Enterprises (SMEs). This discussion explains why the conjecture of the consultation was inherently flawed and summarises how things actually work. It highlights how there is actually no problem to be solved and the FRAND system is messy, untidy, somewhat opaque—but it works. Innovation proceeds apace.