Wednesday, April 12, 2017

FRAND-Related Papers in Some Forthcoming Edited Volumes

Jorge Contreras is putting together an edited volume titled the Cambridge Handbook of Technical Standardization Law, which Cambridge Univeristy Press will be publishing sometime later this year or early next year.  Some of the draft chapters are up on ssrn, including one that Norman Siebrasse and I coauthored titled Judically Determined FRAND Royalties that I've mentioned previously on the blog (here); another by Danny Sokol and Wentong Zhong titled FRAND (And Industrial Policy) in China that I mentioned here; and one by Elizabeth Winston, titled Standard Essential Patents at the United States International Trade Commission, that I mentioned here.  Here are some others:

1.  Damien Geradin, European Union Competition Law, Intellectual Property Law and StandardizationHere is a link to the paper, and here is the abstract:
This paper provides an overview of the efforts of the European Commission to identify and, when necessary, challenge anticompetitive behaviour with respect to standardization and the licensing of standardized technologies, as well as the case-law of the CJEU on the same subject. It begins by discussing the 1992 Communication on Intellectual Property Rights and Standardization, which was the first important contribution of the Commission on the complex interface between standardization, intellectual property and competition law. It then analyses the first major investigations that the Commission made into the licensing conduct of SEP holders, i.e. the proceedings against Rambus and Qualcomm. Next, it discusses the 2010 Commission Guidelines on horizontal cooperation agreements, which contain a chapter dedicated to the application of EU competition rules to standardization agreements. The paper then examines how the Commission has dealt with mergers involving firms holding large SEP portfolios, such as its Google/MMI and Microsoft/Nokia decisions respectively adopted in 2012 and 2013. The paper also analyses the Commission decisions of 2014 against Motorola and Samsung regarding the use of injunctions by SEP holders to enforce their patents against standard implementers. It also analyses the Huawei v. ZTE judgment adopted by the CJEU in 2015, in which the CJEU was asked to determine the circumstances in which SEP holders could seek injunctions against standard implementers without breaching Article 102 TFEU. The chapter then discusses several forms of licensing or litigation conduct, which can be problematic under EU competition law, but which have not yet been dealt with by the EU courts or the Commission.
2.  Daryl Lim, Unilateral Conduct and StandardsHere is a link, and here is the abstract:
This chapter examines how antitrust law and patent law have responded to unilateral conduct by patentees in the standards context. A patentee who legitimately wins the market may improperly leverage on its monopoly power to exclude rivals. Similarly, providing the best-in-breed technology cannot excuse patentees who practice patent ambush. Deception corrupts the competitive process by which SSOs select the best-in-breed technology at a competitive price. If patentees seek to leverage on collaborative standardization, they must accept both the benefit and burdens of that process. 
3.  Nicolas Petit, EU Competition Law Analysis of FRAND DisputesHere is a link, and here is the abstract:
This paper describes the degree of obligation created by a FRAND commitment on the holders of a Standard Essential Patent (“SEP”) from an EU competition law perspective. It shows that the EU courts case-law does not seem supportive of the reading of FRAND as a distributional, pricing commitment. Instead, it views FRAND as a soft commitment device, designed to promote cooperation and exchange amongst independent firms. This is apparent in the Huawei v ZTE judgment, which conveys an invitation on both SEP holders and unlicensed implementers to follow basic procedural requirements in licensing talks. In addition, the paper contributes to the debate on the legal applicability of Article 102 TFEU to SEP holders other than practicing entities. Last, the paper discusses if Standard Setting Organizations (“SSOs”) ex ante specifications of FRAND terms can constrain the conduct of SEP holders under EU competition law.

In addition, Jorge Contreras has a paper titled Technical Standards, Standards-Setting Organizations and Intellectual Property: A Survey of the Literature (With an Emphasis on Empirical Approaches), which is coming out in a volume that Peter Menell, David Schwartz, and Ben Depoorter are editing titled Research Handbook on the Economics of Intellectual Property Law (Edward Elgar, forthcoming 2017).  (I've previously mentioned my paper with John Golden that will be published in this volume, here.)  Here is a link to Professor Contreras's paper, and here is the abstract:
Despite their potential benefits, voluntary consensus standards have over the past decade become the subject of significant private litigation, regulatory enforcement and policy debate. Much of the current controversy centers on the perceived proliferation of patents covering standardized technologies, potentially abusive enforcement of such patents against manufacturers and users of standardized products, and the terms on which patent holders may be required to license the use of those patents to others. This chapter offers an overview of the empirical, legal and economic literature concerning the interaction of inter-operability standards and standards-setting organizations with intellectual property rights (primarily patents, with attention to copyrights and trademarks as well).

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