Here is the link. I'll be presenting this at a workshop at the University of Florida next week. Looking forward to seeing some old friends there.
Here is the abstract:
Standard setting organizations often require their
members to declare which of their patents are essential to the practice of a prospective
standard, and to agree to license any such standard-essential patents (SEPs) on
“fair, reasonable, and nondiscriminatory” (FRAND) terms. Among the issues that have arisen in recent
disputes involving FRAND-encumbered SEPs are (1) whether a FRAND commitment creates
a binding contract for the benefit of third parties, obligating the SEP owner to
forgo the right to seek injunctive relief for the infringement of the SEP; (2) whether
the law of remedies, or other principles of generally applicable civil law such
as the doctrine of “abuse of right,” can limit the prevailing SEP owner’s
ability to obtain injunctive relief; (3) the circumstances under which competition
law (antitrust) may play a role in resolving these matters; (4) whether the
patentee is entitled to relief in the form of ongoing damages, if one or more
of these bodies of law eliminates the possibility of an injunction; and (5) if
so, how should courts calculate those damages.
This article provides both an overview of how courts and other entities
have begun to address these questions in the United States and elsewhere, and my
analysis of the advantages and disadvantages of different possible approaches. I argue, among other things, first that courts
generally should not allow SEP owners to obtain injunctions, but rather only ongoing
damages; second, that in principle though perhaps not always in practice, it is
preferable to use contract and patent law to achieve this result, as opposed to
antitrust; and third, that in awarding monetary relief for the infringement of
SEPs courts should apply the same methodology the use to calculate reasonable
royalties generally, subject to a few modifications.
No comments:
Post a Comment