Monday, October 31, 2016

Three New Papers on FRAND/SEP Issues

1.  Josh Lerner, Haris Tabakovic, and Jean Tirole have posted a paper on ssrn titled Patent Disclosures and Standard-SettingHere's a link to the paper, and here's the abstract:
A key role of standard setting organizations (SSOs) is to aggregate information on relevant intellectual property (IP) claims before deciding on a standard. This article explores the firms’ strategies in response to IP disclosure requirements — in particular, the choice between specific and generic disclosures of IP — and the optimal response by SSOs, including the royalty rate setting. We show that firms with a stronger downstream presence are more likely to opt for a generic disclosure, as are those with lower quality patents. We empirically examine patent disclosures made to seven large SSOs, and find results consistent with theoretical predictions.
2.  David J. Teece and Edward Sherry have posted a paper on ssrn titled Public Policy Evaluation of RAND Decisions in Apple v. Motorola, Motorola v. Microsoft, In re Innoatio, and Ericsson v. D-LinkHere is a link to the paper, and here is the abstract:
The recent decisions in the Apple v. Motorola, Motorola v. Microsoft, In Re Innovatio, and Ericsson v. D-Link cases have offered much-needed guidance on U.S. courts’ interpretation of what constitutes F/RAND licensing terms in the standard-setting context. In this paper, we have discussed the implications of these rulings from the perspective of economics and public policy. The courts have generally relied on modified versions of the criteria used in determining “reasonable royalty” patent infringement damages. Whereas some of these proposed modifications are sensible in our view, others are inconsistent with generally accepted economic principles and are likely to have an adverse effect on incentives to innovate.
For my take on these cases, see, e.g., this paper coauthored with Norman Siebrasse. 

3.  Elizabeth I. Winston has posted a paper titled Standard Essential Patents at the United States International Trade CommissionHere is a link to the paper, and here is the abstract:
The United States International Trade Commission (“ITC”) investigates alleged trade violations of Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337) including importation of products infringing patents. This paper seeks to explore the role of the ITC in protecting domestic industry when infringement of standard essential patents is alleged. The ITC exists to protect domestic industry, and not the patent. The holder of a patent that proves injury to domestic industry must be able to obtain an exclusion order from the ITC, unless the exclusion order is contrary to the public interest, regardless of whether the patent is found subject to licensing requirements as a standard essential patent. An exclusion order is a statutory mandate that can be overcome only by evidence that the statutorily enumerated public interest factors are frustrated. A determination that a patent is a standard essential patent does not preempt the statute. The availability of an exclusion order remains critical to a continuing balance of encouraging contribution to standard setting bodies, while still allowing access to standards, preventing unfair competition and protecting our domestic industry.
For what it's worth, my own views are somewhat different, see, e.g., here.

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