New Papers on FRAND, SEP Issues, Part 1

1.  Liyang Hou and Mengchi Tian have posted a paper titled IPR Protection and Antitrust Regulation of SEPs in China.  Here is a link, and here is the abstract:

This chapter explores the practice of IPR protection and antitrust regulation of standard essential patents (SEPs) in China and discusses whether the licensing of SEPs should be regulated in a way different from other patent cases. With regard to IPR protection, the Chinese judiciary has actively taken a role in patent infringement trials. Differences are observed in SEP infringement lawsuits as compared to ordinary patent cases in terms of non-infringement defense, counter-injunction defense, and damages. In relation to antitrust regulation, the Chinese competition agencies and the courts have mainly focused on price-related abuses and SEP-related merger review, and paid particular attention to the possibility of SEP holders leveraging, tying SEPs with non-SEPs, and charging high royalty fees. Since SEPs have raised a different issue than other types of IPRs, a delicate balance between protecting the private interest of the SEP holders and the public interest of standardization will have to be re-struck.

Hat tip to Danny Sokol for first mentioning this article on the Antitrust & Competition Policy Blog.

2.  Juan Martinez has published a paper titled FRAND as Access to All versus License to All in the July 2019 issue of GRUR Int (pp. 630-40).  Here is the abstract:

In the last few decades, cellular standardised technology has experienced an impressive (r)evolution.  This is mainly due to the success of open standardisation marked by the commitment of some companies to contribute their best innovative technologies to standards and to make them accessible to all on Fair, Reasonable, and Non-Discriminatory (FRAND) terms and conditions.  Recently, a discussion has emerged on whether such commitment implies that the patent holder has an obligation to license everyone across the supply chain ('license to all') or whether he is only obliged to offer everyone access to its standard essential patents through licences with end user devices ('access to all').  Also discussed is whether a requirement to grant a licence at all levels of the supply chain is legally and practically possible.  This paper will analyse the commercial licensing practice in the Information and Communication Technology field, the economic efficiencies of such licensing approaches, as well as the legal and practical implications of each of them.    

3.  Also appearing in the July 2019 issue of GRUR Int. (pp. 658-60) is an article by Franziska Kurz, Hanno Magnus, and David Berger, titled Enforcing Patents Smoothly:  From Automatic Injunctions to Proportionate Remedies.  Tagungsbericht über die Veranstaltung am 22.3.2019 an der Friedrich-Alexander-Universität Erlangen-Nürnberg, a report (in German) on the March 22 conference on injunctions held at Friedrich-Alexander-Universität.  Readers may recall that I participated in this conference, and also in one two weeks later at Ludwig Maximilian University in Munich, which resulted in this paper to be published in a forthcoming issue of  Zeitschrift für Geistiges Eigentum/Intellectual Property Journal.  For discussion elsewhere of the Erlangen conference, see here. 

4.  Finally, I would note that over the weekend Florian Mueller published a post on FOSS Patents thoroughly discussing the recent briefing on the question of whether to grant a stay pending appeal in FTC v. Qualcomm.