1. Anne Layne-Farrar has posted a paper on ssrn titled The Economics of FRAND, which will be a chapter in a forthcoming edited volume titled Antitrust Intellectual Property and High Tech Handbook (D. Daniel Sokol ed., Cambridge University Press). Here is a link to the paper, and here is the abstract:
Since the issue first emerged in the policy arena in the early 2000s, economists have been debating the meaning and implications of FRAND licensing commitments within cooperative technology standard setting organizations (SSOs). Today the issue is global, with scholars and policymakers in Europe, Korea, Japan, China, Taiwan, India, and Brazil all weighing in. Most SSOs around the world ask their members to commit to offer any patents that might be needed to implement a standard in commercial products and services (that is, any patents that might be “essential” for the practice of the standard) on Fair, Reasonable and Non-Discriminatory (FRAND) terms. But what exactly does it mean to license a patent on fair, reasonable, and non-discriminatory terms and conditions? Does promising to do so come with other, implicit, obligations as well, such as foregoing seeking an injunction which is otherwise an option for patent holders? And more fundamentally, why do SSOs ask their patent-contributing members to commit to FRAND?
In this chapter, I review the academic literature on FRAND licensing. My review is intended to discuss the economic underpinnings of FRAND, but it would be incomplete without discussing court rulings to date, as FRAND court decisions provide real world boundaries to interpretations of FRAND licensing. That being said, my summary of the court cases focuses on the economic interpretation of FRAND and the practical implications for expert analysis, and does not cover any legal assessment (for which I am unqualified). While the underlying economics of FRAND are universal, legal and institutional factors affect court outcomes and policy interests; I therefore restrict my discussion to the US.2. Dr. Layne-Farrar also has posted a paper titled A Theoretical Framework for Empirical Research on PAEs and Privateers. Here is a link, and here is the abstract:
Patent Assertion Entities – firms that acquire patents from others and then deploy them for licensing or damages revenues rather than for practice within their own products or services – have been a frequent subject of debate over the last several years. More recently, focus has centered on a new species of PAE, “privateers” or “hybrid PAEs”. These are entities that obtain patent enforcement rights from practicing entities, assert those patents in litigation, and then share the damages earnings with the original patent holder. This paper provides a theoretical assessment of how hybrid PAEs may alter the litigation landscape. The framework developed here can provide an important aid to guide empirical work.