This week, the Federal Circuit ruled that the decision of whether a patent is essential to a standard (SEP) is a question of fact to be decided by the ultimate triers-of-fact—not to be made by a judge during claim construction. This decision comes after last year’s ruling that licensing rates in SEP cases are also a question of fact. These rulings will have an immediate impact on expert choice. Issues around essentiality require a deep understanding of the standards themselves and how the technology at issue functions within the standards. The intellectual property concepts are rarified air to begin with, now couple it with an expert witness that can convey a message to a jury. WIT has leading academics and industry experts to address this issue and has pioneered the targeted rebuttal of SEP-related expert reports using the interplay of function and standards, including knowledge around “zombie standards”.
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