Some New Papers on FRAND

1.  Jorge Contreras has posted a paper on ssrn and on the website of Sage Publications titled Aggregated Royalties for Top-Down FRAND Determinations: Revisiting 'Joint Negotiation', 62 Antitrust Bulletin 690 (2017).  Here is the abstract:

In an environment in which widely-adopted technical standards may each be covered by large numbers of patents, there have been increasing calls for courts to determine “fair, reasonable and non-discriminatory” (FRAND) royalties payable to holders of standards-essential patents (SEPs) using “top-down” methodologies. Top-down royalty approaches begin with the aggregate royalty that should be payable with respect to all SEPs covering a particular standard, and then allocate a portion of the total to individual SEPs. Top-down approaches avoid many drawbacks associated with bottom-up approaches in which royalties for individual SEPs are assessed, often in an inconsistent and piecemeal manner, without regard for the other SEPs that cover the standard. Yet despite the potential benefits of top-down methodologies, one of the most promising means for determining aggregate royalty levels – joint agreement by the members of the relevant standards-development organization (SDO) – has gained little traction. The idea of SDO participants jointly negotiating FRAND royalties attracted the attention of commentators and antitrust agencies about a decade ago, when a handful of SDOs began to explore mandatory ex ante rate disclosure requirements. But few SDOs adopted such policies, and joint negotiations were never incorporated into the mainstream standardization process. One of the principal reason that SDOs have been hesitant to endorse joint royalty negotiations is the perceived risk of antitrust liability arising from concerted action among competitors. But as numerous commentators and antitrust officials have reiterated, this fear is largely misplaced in the context of industry standard-setting. Thus, SDOs should follow the lead of patent pools and begin more actively to determine aggregate patent royalty burdens for standards that they develop. In addition, antitrust and competition authorities should assure the market that collective agreement on aggregate royalty rates alone should not give rise to antitrust liability. 

2.  Jinyul Ju has posted a paper on ssrn titled Recent Developments in Korean Antirust Cases Concerning FRAND-Encumbered Standard-Essential Patents, 8 Jindal Global Law Review 221 (2017).  Here is a link to the paper, and here is the abstract:

In Korea, there have been four antitrust cases concerning the “fair, reasonable, and non-discriminatory” (FRAND) related standard-essential patents (SEPs) in the last six years: (1) Seoul Central District Court’s decision in Samsung v. Apple (August 2012); (2) Korean Fair Trade Commission (KFTC)’s consent decision on Microsoft’s acquisition of Nokia (August 2015); (3) Seoul High Court’s decision in Qualcomm v. KFTC (August 2012) pending in the Supreme Court; and (4) KFTC’s decision against Qualcomm (January 2017) pending in the Seoul High Court.

3.  A. Douglas Melamed and Carl Shapiro have posted a paper on ssrn titled How Antitrust Law Can Make FRAND Commitments More Effective.  Here is a link to the paper, and here is the abstract:  

In this article, we argue that the antitrust laws have an important role to play in ensuring that the rules established by standard-setting organizations are effective in preventing the owners of standard-essential patents from engaging in patent holdup after the standard is established and becomes commercially successful. These organizations and their members can violate Section 1 of the Sherman Act if the rules adopted are ineffective in preventing the owners of standard-essential patents from exploiting the ex post monopoly power they gain because of the standard.