Some New Articles, Posts on FRAND, Part 4

1. Matthieu Dhenne published a post on the Kluwer Patent Blog titled Unwired Planet Judgment and the French Riviera: je t’aime moi non plus.  The essay argues that, although the U.K. courts have recognized that the ETSI IPR policy is governed by French law, they haven't given much consideration to the actual content of French law.  The author states that because "the FRAND commitment constitutes a form of 'stipulation for third parties', a mechanism under French civil law equivalent to a third-party beneficiary clause, this justifies, with regard to the law applicable to the commitment, the setting of a global rate," but that "on the other hand, ETSI itself and its rules would undoubtedly deserve serious reform to become truly efficient."  He concludes with the question whether France itself will become a magnet for SEP litigation.

 

2. Curtis Dodd published a piece on IP Watchdog titled Damages for Patent Infringement versus FRAND Licensing Rates. The article raises the question whether FRAND royalties and reasonable royalty damages are identical under U.S. law, and whether implementers might forfeit their entitlement to FRAND royalties or be liable for enhanced damages for willful infringement.

 

3. Luke Froeb, Bernhard Ganglmair, Gergory Werden, and Steven Tschantz have posted a paper on ssrn titled Technology Economics: Innovation, Licensing, and Antitrust, forthcoming in the Global Antitrust Institute Report on the Digital Economy.  Here is a link, and here is the abstract:

Public policy toward innovation faces a trade-off: Increasing the compensation of successful inventors increases dynamic efficiency by spurring technological progress, but it decreases static efficiency by enlarging a wedge between price and marginal cost. In making this trade-off, public policy is guided by two insights—economic growth is the prime driver of social welfare gains, and technological progress is the prime driver of economic growth. Patent and copyright law, therefore, were designed to help inventors and authors appropriate a significant share of the value of their inventions and writings. Antitrust law neither revokes nor restricts any right granted by patent law, and antitrust law can contribute little in resolving disputes arising from commitments to license on FRAND terms.

Economic theory and empirical research into innovation and the patent system reveal a complex and varied landscape. Two robust conclusions are that too little is invested in innovation and that both the innovation process and the role of patents in the process vary greatly across industries and inventions. Depending on the precise question posed, theory predicts that monopoly can enhance or retard innovation, and data generally support the hypothesis that both monopolies and unconcentrated markets are relatively inhospitable to innovation. Although patents are critical to innovation in the pharmaceutical and chemical industries, they are unimportant in many industries, and patent protection generally has been found to have no effect on the pace of innovation. 

The last part of the paper provides a theoretical discussion of the Shapley value concept with respect to FRAND royalties.