Expiry isn't the issue. In America (and Canada I'm pretty sure) you have the right to use a patent at a fair cost determined by a court. Or you can try to just use the patent anyway and wait for the court case to come to you.
There are a few exceptions in US law (e.g., provisions in the Defense Production Act) that can allow a patent owner to be compelled to license their IP. IANAL but I believe this generally requires an officially declared emergency of some kind.
There are additional exceptions short of a declared emergency, but rarely invoked. So in practice I agree this is unlikely to happen with e-ink displays. But for legal nerds I'll elaborate anyway.
Some exceptions are obviously inapplicable here, e.g. special rules for plant varieties [1] and nuclear energy [2]. The one most likely to apply to e-ink displays is that, under the Bayh-Dole act, if an invention was funded by government grants, and the patent holder fails to make it widely available, the government has so-called "march-in rights" to license it to third parties themselves. However this has never been successfully used. Wikipedia summarizes: "Though this right is, in theory, quite powerful, it has not proven so in terms of its practical application" [3].
[1] Perhaps because it's controversial to allow plant varieties to be patented in the first place, the statute for them has an explicit compulsory license clause (see the last subsection): https://www.law.cornell.edu/uscode/text/7/chapter-57/subchap...
Thanks for the correction, I misremembered that, it seems. On the other hand, an SEP holder not licensing the patent with FRAND terms will have a hard time to establish any kind of standard, in some scenarios.
I agree with you, it would be counterproductive. The more common occurrance is that one of the patent-holding entities opts out of the FRAND agreement, holding all the implementors of the standard hostage. An example would be Forgent's acquisition of a patent they interpreted to be essential to JPEG. The patent was eventually invalidated in the courts, but it caused a lot of headaches for a few years in the early 2000s.
