Consultation outcome

Standard Essential Patents and Innovation: Executive summary and next steps

Updated 5 July 2023

Executive summary

Introduction

Our aim is to produce the optimal intellectual property (IP) framework for the UK that will promote innovation and creativity both now and, in the future, while supporting the government’s ambitions set out in the Innovation Strategy^{[footnote 1]} and Diversification Strategy (Government’s Telecoms Diversification Strategy^{[footnote 2]}. The IPO has been conducting a call for views to investigate whether the ecosystem around Standard Essential Patents ^{[footnote 3]} is functioning efficiently and effectively and strikes the right balance for all entities involved. The purpose is to help assess whether government intervention is required.

Section 1 - The balance of the ecosystem and benefits to innovation and consumers

Many respondents said that a balanced ecosystem was essential to supporting innovation and competition. Respondents also pointed to the benefits of standardisation for innovation and consumers in sectors which require technical interoperability. Some said no change is needed or that there is no evidence of a problem. However, others said that the system is imbalanced, either in favour of SEP holders^{[footnote 4]} or implementers. Many respondents said that there were specific challenges which concerned them even if they thought that the system overall worked well.

We received many specific proposals for changes intended to benefit consumers, innovation, and competition in response to our opening questions and throughout. Responses discussed potential roles for Standard Development Organisations (SDOs),^{[footnote 5]} commercial entities including patents pools, regulators and the UK Government in contributing to a balanced framework and protecting the interests of consumers.

Section 2 - Competition and market functioning

Competition issues competition law and guidance. Some respondents said there were no issues in respect of market power^{[footnote 6]} in relation to SEPs. These pointed to the rapid adoption of standardised technology and other indicators in support of this. Others argued that the requirement to offer licences on fair, reasonable and non-discriminatory (FRAND) terms meant that SEP holders could not exercise potential market power derived from the incorporation of their technology in a standard.

However, many respondents said that there exists an imbalance of power to influence prices in SEP negotiations. Some SEP holders said implementers derive power from the requirement to offer FRAND terms, which gave them the ability to “hold-out”^{[footnote 7]} or delay entering into licences, while these terms were negotiated and litigated. Most implementers said that SEP holders exercise market power, and some argued that SEP holders used the threat of injunctions to coerce implementers to accept non-FRAND licences (so called “hold-up”^{[footnote 8]}). Similarly, there were a mixture of views on whether there were wider issues related to competition and market functioning. Issues discussed included barriers to entry and market exclusion; “tying and bundling”^{[footnote 9]} of patents; and negative impacts of UK courts determining global licensing terms. Both sides of this debate submitted examples and court case evidence in support of their arguments.

A number of responses did not call for any changes to be made to competition law or guidelines. Some pointed to the benefits of patent pools^{[footnote 10]} in addressing issues of pricing. On the other hand, some called for changes to address their concerns. Some called for changes to legislation such as the Patents Act 1977 to restrict the use of injunctions, or for the establishment of a tribunal to determine prices. Some also called for change to the Horizontal Guidelines^{[footnote 11]}which cover issues of potential market power in relation to SEPs, or for investigations by the Competition and Markets Authority (CMA).

Section 3 - Transparency

Transparency of essentiality, and over-declaration.^{[footnote 12]} Respondents discussed the challenges for licensees of determining which patents were truly essential to the standard. Many respondents put the issue of transparency of essentiality of SEPs in the context of the policies of SDOs. Some SDOs, such as the European Telecommunications Standards Institute (ETSI) which produces telecommunications standards, require disclosure of patents which merely have the potential to be essential to a standard. This is so that they can be the subject of a commitment to offer FRAND terms before being incorporated into the standard. Some said this would naturally lead to so called “over-declaration” but that this was not genuinely problematic. Others said that over-declaration created serious problems. These included uncertainty, costs and inefficiencies for firms seeking to negotiate licences or involved in litigation, and asymmetry of information between negotiating parties and effects on prices.

Essentiality checking. Some saw no need for an independent third-party essentiality checking service, because there was not a problem or because the parties involved in the negotiations were better placed to carry out the checks. Others stated that any such checks must be voluntary or that there must be recourse to the courts for essentiality checking. Others pointed to the existing essentiality checking services provided by patent pools in some sectors. However, some argued there was a need to introduce independent third-party checks and saw a role for governments, regulators and patent offices in prescribing how these should be carried out. Some thought patent offices could carry out such checks themselves. A number of respondents commented on the appropriate methodology for essentiality checks and the use of databases.

Legal certainty. We asked whether greater legal certainty could be provided for essentiality checks and, if so, how. Many respondents, both SEP holders and implementers, said that a legally binding decision on essentiality and non-essentiality could only be made by the courts. Some respondents said it would be impractical to determine essentiality with legal certainty for more than a small number of patents or that this would require successful assertion of each and every SEP in a portfolio.

Transparency of pricing. We asked about whether there was sufficient transparency of licensing rates when entering into a negotiation, and whether some pricing transparency would be appropriate. Some argued there was sufficient transparency of pricing in markets for the most standardised technologies, for example cellular technology. Some also said that pricing transparency was difficult for markets in new technology, but that pricing becomes transparent as markets evolve. Some also gave the example of the transparency of pricing provided by public disclosures of prices by some patent pools.

However, several respondents did not think there was sufficient transparency. They raised specific concerns about the use of non-disclosure agreements in licensing terms. Some said this limited the availability of information about terms, made negotiation more difficult and created scepticism about whether licensees were being offered the best rate. We received a number of proposals to improve price transparency including to remove such restrictions in licensing agreements. Some respondents said that truly comparable licences should be made available during negotiations. Other examples included requirements for SEP holders to publicly disclose rates, or to disclose rates to a suitable body such as the relevant SDO, the IPO, a competition authority, or a tribunal similar to the Copyright Tribunal.

Charging different FRAND rates to different licensees. We also asked whether there is a justification under FRAND to charge implementers different rates when using the SEP for the same purpose. Some SEP holders said that different approaches or methodologies might be used by different SEP owners to negotiate royalty terms, and all may be consistent with the FRAND concept because they reflect the market-based value of the licensed SEPs or differences in the value created by different uses of the technology (e.g. in cars compared to domestic appliances). Some responded that the Supreme Court in their judgement in Unwired Planet^{[footnote 13]}rejected the argument that differences in pricing terms for SEPs is presumptively problematic and that the non-discrimination element of FRAND does not mean that every licensee is entitled to the same rate, even similarly situated licensees.

However, several respondents said that that SEP holders bound by the FRAND commitment have no justification to charge similarly situated users differently. Some respondents, mainly implementers, also added that they disagreed with arguments which said that differences in price were justified on differences in the value of end-product technology. These issues are further summarised below.

Section 4 – Patent infringement and remedies

Levels of litigation. Some respondents said the current UK patent system and approach to SEP licensing generally works well. However, others said there were relatively high levels of litigation, and both SEP holders and implementers said that this created problems for them in terms of costs or finance. Views on the nature and causes of these problems differed and reflected the differing views on issues such as “hold-up” and “hold-out”, and transparency more broadly.

Global fairness and the decisions of national courts. Respondents were asked whether the current patent regime creates a fair global market. While there were some comments on the fairness or otherwise of the overall system, many respondents highlighted specific respects in which they said it was not fair. These included variation in the approaches of courts to injunction or damages, including protectionism, variations in the costs of enforcement, and unfair practices by SEP holders or implementers. Many responses said that the UK Courts were a favoured destination for SEP holders or perceived to be friendly to SEP holders. Many responses discussed the UK court’s determination of the terms of global licences in the case of Unwired Planet^{[footnote 14]}, with differing views on whether that has contributed to unfairness, as discussed below.

Enforcement. Respondents were also asked about the sufficiency of the framework for enforcement of SEP and the impact of the use of injunctions and anti-suit injunctions^{[footnote 15]} (ASIs). Some respondents said enforcement was costly and slow, or difficult. Most SEP holders said that injunctions should be available in SEP cases as for other patents, and that case law already provided a framework for their appropriate use in SEP cases. Most implementers said injunctions should not be available or should only be available in rare circumstances. They argued the threat of an injunction can be used to pressure a licensee into accepting non-FRAND terms, and that in making a FRAND commitment the patent holder had foregone any right to exclude others from the technology incorporated into the standard.

Some of those who said the current system left incentives for hold-out suggested that enhanced damages could be awarded instead of or in addition to injunctions. Some of those who said that injunctions should be used only in rare circumstances said that policy statements or changes to the Patents Act 1977 were needed.

Anti-suit injunctions. Many respondents commented on the use of ASIs, which prevent a party from commencing or continuing the same legal action in another or foreign jurisdiction or enforcing a judgment obtained in foreign legal proceedings. Some argued that ASIs could be useful in avoiding duplication of disputes and conflicting decisions in different jurisdictions. Some also argued that they must be available to implementers to prevent SEP holders choosing to pursue legal action in the most favourable jurisdiction to them. However, several respondents said that ASIs were problematic, adding to the cost, complexity and length of litigation or depriving SEP holders of their ability to enforce their patents. Some respondents said that ASIs had been used in the Chinese courts without due process. Respondents also said ASIs had been used to assert jurisdiction as a response to the determination of global FRAND licensing terms in the case of Unwired Planet v Huawei.^{[footnote 16]}

We received several proposals for discouraging the use of ASIs. One proposal was that the use of an ASI should be treated by the courts as a sign of being an unwilling licensee. Others said that the issue could not be solved at a national level and that their needed to be a convergence between jurisdictions as to when injunctions should be available in SEP disputes, or a single international forum for arbitrating disputes related to global licences.

Section 5 – Licensing of SEPs

Emerging technologies. We asked how the framework for SEPs and FRAND ecosystem might adapt for emerging technologies. Some respondents, including most SEP holders argued that the system generally worked well to encourage innovation, and that SEPs licensing was an enabler of technology take up. Some SEP holders, licensing administrators and others said that patent pools could offer a means for implementers in new markets to implement standardised technologies. Others, including many implementers, responded that concerns they had about the ecosystem generally applied, or especially applied, to emerging technologies. Some responses discussed specific concerns around impacts on the Internet of Things (IoT) and UK small-to-medium enterprises (SMEs). Concerns included the impact of court decisions seen as favourable to SEP holders; cost, uncertainty and complexity, transparency, lack of information and understanding; and bad faith in negotiations. Responses also discussed the basis of licensing rates and who should be able to obtain a licence, which are discussed more generally below.

A number of respondents said that SDO should update their policies to accommodate emerging technologies and submitted specific proposals for change. Some respondents said there was no need for further government regulation in this area. Others said the UK should change the law or provide guidance.

Flexibilities to improve efficiency for implementers. We asked whether flexibilities existed which could improve the efficiency of obtaining a licence. Some respondents said FRAND arrangements provided sufficient flexibility and that court decisions, such as Huawei v ZTE^{[footnote 17]} and Unwired Planet provided a balance for both parties in negotiations, and guidance to settle disputes on a case-by-case basis. Some respondents also responded to say that the practice of SEP holders choosing to licence at a specific level of the value chain,^{[footnote 18]} such as to end product manufacturers was efficient, and did not prevent access to technologies for those at other points on the value chain (such as component manufacturers).

However, many implementers and some others, argued that there were a number of sources of inefficiency for implementers. Difficulties stated included the preference of SEP holders to provide licences at a specific, downstream, level of the value chain; the use of injunctions; transparency and disclosure; bad faith in negotiations; and broader challenges of obtaining a FRAND rate. Some respondents proposed changes to the law to address the difficulties they said implementers faced. These included changes to UK law to restrict the use of injunctions or the introduction of principles to provide guidance on FRAND negotiations. Some respondents said the CMA should amplify the guidance which already exists in the Horizontal Guidelines to address the issue of the point in the value chain at which a licence is offered. Some respondents also suggest sources of potential improvements besides changes to the IP framework, such as greater provision or use of patent pools.

Other means of improving efficiency. Responses to a follow up question on other means of efficiency around SEP licensing generally said improvements could be made. Examples of proposals which have not been summarised elsewhere included more specific proposals aimed at providing greater transparency of licences (such as requirements to disclose and publish licensing rates); and proposals to incentivise good faith negotiations by requiring a punitive element for bad faith behaviour by licensors or licensees. Some said SME implementers could benefit from better awareness or understanding of licensing practices in response to this question. Some pointed to existing guidance which could be used. Some suggested guidance on negotiations and the information which should be provided would help improve efficiency.

Patent Pools. Many respondents said that patent pools can improve the efficiency of SEP licensing, for example by providing transparency of pricing, and reducing costs and delays. However, some said that it could take years to establish a patent pool at critical mass and that they were more effective in some technology sectors than others. Some respondents said they saw some problems associated with patent pools (even if they also saw benefits). Some respondents said that having more than one patent pool for a standard made negotiating a licence more complex. Some respondents said that patent pools could raise costs for smaller SEP holders or licences. Some respondents had concerns about the transparency of ownership of patent pools and wanted more transparency about the licensing terms offered within them. They had similar concerns to those which have been raised in relation to bilateral negotiations, for example, about the willingness of implementers to enter into licences, or the point in the value chain at which licences are offered, were said to be concerns in the context of patent pools too.

No respondents said that patent pools should be mandated, and many said that to do so would be problematic. Some respondents said that the establishment of patent pools was best left to licensing administrators. However, some respondents said States or SDOs could have a partial role, such as encouraging or facilitating their establishment or providing guidance on their structure or terms.

Pricing. We asked about the best way to resolve disputes around pricing and for views on related issues. Some respondents said that settlement of disputes over pricing was best left to the courts. Some said they favoured the practice by some courts of using comparable licences in settling disputes about an appropriate FRAND rate. We also received many responses on the issue of point in the value chain at which licences should be offered (e.g., to a component manufacturer or to an end product manufacturer) and the distinct but related issue of the basis for setting royalties (e.g. in relation to a component or an end product).

Several respondents said that the FRAND commitment should be interpreted to mean that standardised technology should be accessible to all, rather than licensed to all. Respondents submitted views on practical challenges and complexities of negotiating and enforcing licences if they were required to license to all and associated transactions. Licensing to a single point on the value chain was more efficient. Some further argued that the end product manufacturer was the most efficient point at which to provide a licence. Some said that component manufacturers are sufficiently protected by licensing terms which grant rights not just to make but to “have made” the technology covered by the patent.

However, several others said that licences should be available throughout the value chain to any company that wishes to take a licence. Some said refusal to supply licences to downstream component manufacturers would impact on innovation. For example, one respondent said it could harm the ability of component manufacturers to innovate on top of the standard. Other respondents argued that while component suppliers are unable to obtain licences to indemnify their customers for patent infringement, companies seeking to develop innovative products based on components face uncertainty regarding their exposure to infringement claims. Some argued that widening SEP licensing to component manufacturers would encourage new entrants and support competition.

On the related issue of the product in relation to which royalties are calculated, some SEP holders and others argued that royalties based on the end product were appropriate, either because this was most practical or because it better captured the value of the contribution of the standardised technology to the consumers. On the other hand, some implementers and others argued that the economic basis for calculating rates payable should be the selling price of the smallest saleable component of a product that implements the SEP (such as a microchip). They argued that this ensures royalties reflect the value added by the SEP, and not the value of any further end product innovation by the implementer.

We asked about the utility of schemes which define allowable costs to be used in the calculation of royalties. Several respondents said that methodological approaches already recognised by the courts should be used. Many respondents, both SEP holders and implementers, responded against introducing more formalised pricing methodologies or rules, as this would be overly inflexible or “one size fits all”.

Respondents discussed the merits of different pricing methodologies. Some advocated use of a fixed royalty per unit. Others advocated schemes which calculate royalties as a percentage of allowable costs, for example in relation to the features which derive value from the patented technology. Some respondents saw a role for a board or expert groups in making assessments of costs or value relevant to setting royalties. Some respondents said that how proposed royalties are calculated should be made more transparent to licensees.

Section 6 -SEP Litigation

Global FRAND terms. We asked about the benefits or otherwise of national courts determining the terms of global FRAND licences, as seen in the Unwired Planet case,^{[footnote 19]} which was the subject of a UK Supreme Court decision on appeal. Several respondents stated that the setting of global licensing rates can be more efficient than pursuing litigation in multiple jurisdictions. Some responded that global licensing decisions by the courts were reflecting industry practice of using global licences, and several SEP holders generally supported the approach of the UK courts. Some said that in the Unwired Planet decision the court was not forcing a potential licensee to accept a global licence. Rather they had the option to accept a UK limited injunction instead.

However, several respondents, including many implementers, said national courts should not be able to compel a party to accept a determination of global licensing terms. Many respondents saw this as extra-territorial judicial over-reach and said the effect was to encourage forum shopping and the use of ASIs. Some said global FRAND determinations heightened concerns about the threat of injunctions being used to compel a potential licensee into accepting terms which are not FRAND, and undermined the ability of potential licensees to challenge patents in different jurisdictions. Some said decisions made by the UK courts could discourage innovators away from the UK market, or threaten innovation by UK businesses, including SMEs. Some of those who said the decision was problematic called for government intervention or clarification regarding the precedent set. Others said that international solutions were needed.

Role of courts and ADR. We asked about the efficiency of case-by-case determination of FRAND licensing terms, and about alternative dispute resolution (ADR) ^{[footnote 20]} mechanisms, such as mediation or arbitration. Many responses said court cases were not an efficient means of making determinations, and that litigation was costly and time consuming. Despite this, many of those respondents and others said that the courts are the only or best way of making determinations where negotiating parties can’t agree. The transparency of details of FRAND licences and guidance on expectations of behaviour provided by the courts were benefits highlighted by many. Nonetheless some said that negotiated solutions or use of other forms of dispute resolution should be encouraged.

Many respondents said that existing means of ADR can be effective, although both parties have to agree to enter into this voluntarily. Advantages stated included lower cost, speed, confidentiality, flexibility, the absence of appeal, and the potential to be use for cross jurisdictional disputes. Disadvantages stated included that there was a lack of transparency and ability to provide precedents that arbitration was not always lower cost than litigation, the absence of provision for disclosure of prior licences, and a lack of technical expertise or jurisdiction.

Most respondents who commented said that ADR should not be mandatory, and some proposed incentivising voluntary use of existing ADR mechanisms. Others proposed changes to address what they saw as the disadvantages of existing mechanisms. On the other hand, some respondents proposed that requirements to enter into ADR could be mandated by SDOs. Some respondents said there was a need for new forums for arbitration. A few respondents proposed there should be a new forum at an international level, which could be modelled e.g., on the UK Copyright Tribunal.

Next steps

The IPO would like to thank all contributors to the call for views on Standard Essential Patents and Innovation. The responses provided valuable information and frequently pointed to relevant evidence and data to consider.

Many respondents stated the importance of standards and SEPs for innovation and consumers. We found that both SEP holders and implementers reported problems related to the efficiency or effectiveness of the ecosystem around SEPs. However, there was little consensus on the nature, extent, causes, and impact of problems in this area, with SEP holders and implementers often advancing opposing arguments in response to the questions posed.

There was also little consensus on the need for government to intervene. Some SEP holders and others argued for no change or minimal changes. Some respondents pointed to the potential of market led solutions such as patent pools. However, some implementers and others called for government intervention, through changing legislation, issuing guidance, or establishing or strengthening institutions or processes. Some of these proposals were intended to counter the effect of decisions which had been subject to careful reasoning in the UK courts, including the Supreme Court. And a number of respondents called for changes at an international level which might require co-ordination or collaboration between States.

The IPO believes that standards and standard essential patents will be of growing importance to the UK economy, and the government’s ambition for the UK to be a science and technology superpower and innovation hub by 2035. Given the breadth of issues raised and the divergence of the views on the case for government intervention, the IPO will require a further period while we assess the issues and, as appropriate, consider the merits of the proposals submitted. During this period, we will engage with businesses and others to ensure we have understood their concerns and seek further evidence where needed. We will report our findings to UK ministers in 2023 and would expect any significant policy interventions to be subject to consultation.

We will continue to work closely with other UK public authorities and government departments. The Department for Culture, Media and Sport will contribute to this ongoing work to drive forward its ambitions set out in the 5G supply chain diversification strategy. Ministry of Justice will contribute to consideration of issues concerning dispute resolution and access to justice. The CMA envisages preparing and consulting on draft guidance on horizontal agreements later in 2022, including on standardisation agreements. Responses to this IPO call for views on SEPs will inform any content in the CMA’s draft guidance that might relate to SEPs and FRAND.

We will also continue to engage at an international level with other patent offices and others, recognising that SEPs are used by global businesses and technologies, and some of the responses we received call for global collaboration to be considered.

1. UK Innovation Strategy: leading the future by creating it - GOV.UK (www.gov.uk) ↩

2. 5G Supply Chain Diversification Strategy - GOV.UK (www.gov.uk) ↩

3. A patent which protects technology which is essential to implementing a standard is known as a standard essential patent (SEP). ↩

4. “SEP holder”. A company that holds one or more patents that have been declared essential to a standard, and that it thereby commits to license on FRAND (fair, reasonable, and non-discriminatory) terms. Also referred to as a “SEP owner”. “Implementer”. A company that manufactures goods and/or services in compliance with an industry standard, by directly or indirectly using technology declared essential to a standard. ↩

5. An organisation that is primarily engaged in activities such as developing, coordinating, promulgating, revising, amending, reissuing, interpreting and otherwise maintaining standards (with input from industry and technical experts) to meet the needs of an industry or field. Also known as a “Standard Setting Organisation” (SSO). ↩

6. Market power is defined by the Organization for Economic Co-operation and Development (OECD) as ‘the ability of a firm (or group of firms) to raise and maintain price above the level that would prevail under competition. The exercise of market power leads to reduced output and loss of economic welfare. ↩

7. So-called ‘hold-out’ refers to the practice where an implementer delay agreeing a licence in order to escape payment of royalties or to pressure the SEP holder to agree to a lower licence fee than may be fair or reasonable. There is lack of agreement on what behaviour by an implementer constitutes hold-out. See Section 2 on competition and market functioning for more views on hold-out. ↩

8. So-called ‘hold-up’ refers to the practice where a SEP holder demands an excessive license fee above a fair and reasonable rate. Please see Section 2 of this report for more information on market power and for more responses related to hold-up and market power. ↩

9. A European Commission discussion paper defines ‘tying’ as occurring “when the sale of a product is conditioned to another transaction. An individual or a company agrees to sell the product only if its purchaser agrees to acquire another product”. It defines bundling as occurring “when a set of several products is sold in one sole ‘package’”. See https://ec.europa.eu/competition/antitrust/art82/024_en.pdf ↩

10. Patent pools are defined as an agreement between two or more parties to license one or more of their patents to one another or to third part (see 1.22) ↩

11. The Competition and Markets Authority (CMA) has published a Call for Inputs in relation to Retained Horizontal Block Exemption Regulations – R&D and specialisation agreements. The CMA’s review includes consideration of the existing European Commission guidelines on horizontal cooperation agreements, which among other things, covers competition law guidance on standardisation agreements and FRAND terms. Cooperation is of a ‘horizontal nature’ if an agreement or concerted practice is entered into between actual or potential competitors. ↩

12. In the ETSI IPR Policy, “declaration” refers to a commitment by a patent owner that ensures their patent is available for implementation of a standard. For example, a declarant making a commitment that their patent is licenced on FRAND terms. A disclosure informs an SDO of specific patent(s) that the patent holder believes may or may become essential to a standard. Responses contained a mixture of the uses of the terms “declaration” and “disclosure”. However, it was not clear to us those responses always observed this distinction when using these terms. In summarising we have tended to use the term most used which was “declaration” in response to our questions about over-and under-declaration. ↩

13. Unwired Planet International Ltd v Huawei Technologies (UK) Ltd UKSC 2018/0214; https://www.supremecourt.uk/cases/docs/uksc-2018-0214-judgment.pdf. ↩

14. Ibid 13. ↩

15. An anti-suit in junction (ASI) is an order made by a court preventing a party before it from commencing or continuing the same legal action in another or foreign jurisdiction or enforcing a judgment obtained in foreign legal proceedings. ↩

16. Ibid. No.13, Unwired Planet v Huawei. ↩

17. Huawei Technologies Co. Ltd v ZTE Corp. and ZTE Deutschland GmbH, C-170/13. In the Huawei decision the CJEU set out a number of steps that should be followed in SEP patent licensing negotiations. The steps set out in the Huawei v ZTE decision were in relation to the ruling by the CJEU that a SEP holder that has committed to license its SEPs on FRAND terms may be found in breach of abuse of a dominant position (Article 102 of the Treaty on the Functioning of the European Union) by seeking an injunction against a potential licensee in certain circumstances. ↩

18. The value chain refers to the process and entities involved in adding value to a product from start to finish, for example combining raw materials to produce components, or combining components to produce an end product. The supply chain refers to all entities that handle a product up to its distribution to the consumer. Unlike the value chain, members of a supply chain do not necessarily add value, they may include intermediaries who simply transport inputs from one entity to another. Responses contained a mixture of uses of the terms “value chain” and “supply chain” even when arguing to similar conclusions. We have used the term that seemed most appropriate to the points of view we have attempted to summarise. ↩

19. Ibid. No.13, Unwired Planet v Huawei. ↩

20. ADR here is used as a generic term that refers to ways of resolving disputes that don’t involve litigation in court and which includes arbitration and mediation. ↩