Tuesday, January 19, 2021

Towards an International FRAND Tribunal?

Law360 published a very interesting article last week, titled FRAND Rate 'Nightmare' Raises Call For International Tribunal.  The article discusses, among other things, the anti-antisuit injunction recently entered by Judge Gilstrap in the Ericsson v. Samsung matter, and quotes Professor Jorge Contreras, Josh Landau, and David Tsai, all of whom support creating some sort of international tribunal to decide FRAND rate cases.  I agree 100%:  I don't think the current system of national litigation, which inevitably results in forum shopping (now with the accompanying complication of anti- and anti-antisuit injunctions issued by different national courts), is sustainable in the long run.  The difficulty is how to get to where we need to be.  One possibility is that, with Makan Delrahim stepping down as head of the USDOJ's Antitrust Division today, maybe his replacement under the Biden Administration (Renata Hesse?) will be more receptive to efforts on the part of SSOs themselves to require some sort solution along these lines, without risking incurring antitrust liability.  Anyway, it should be an interesting year in FRAND litigation.  

I working this week on completing an essay that will touch on these and other issues.  For foundational papers on the global tribunal idea, see Jorge L. Contreras, Global Rate-Setting:  A Solution for Standards-Essential Patents?, 94 Wash. L. Rev. 701 (2019); Roya Ghafele, Global FRAND Licensing in Light of Unwired Planet v. Huawei, 24 UCLA J.L. & Tech. (2020), https://uclajolt.com/wp-content/uploads/2020/04/Ghafele-Final.pdf. 

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