It was just over one year ago when the High Court somewhat rattled the Government by finding that Vodafone had a crown use defence in respect of its infringement of a standard essential patent. The specifics of the case involved the MTPAS system, by which emergency responders could be given priority access to the mobile network.
Fortunately for the Government, and in particular for the Exchequer given the need to pay compensation, the Court of Appeal has overturned the finding that Vodafone could rely on that defence. Accordingly, the risk of the Government having to pay unexpected licensing payments has evaporated, though the crown use defence may still apply in other cases (including, presumably, SEP cases) if the Government chooses to allow companies to use other patents when contracting with them.
For further commentary on the case, Bristows' own Myles Jelf gives his perspective on World IP Review.
Also, don't forget to check out the Bristows FRAND tracker where our experts keep an eye on global FRAND developments.
The ruling clarifies that, while the government does have a right to use patented inventions if it compensates the patent holder, it has to “consciously exercise that right” by identifying the patent or requiring a service that “necessarily” infringes on the patent.