Monday, October 18, 2021

Some Recent Articles, Posts on FRAND Issues

1. Volume LVI No.3 of les Nouvelles - Journal of the Licensing Executives Society (Sept. 2021) has a couple of FRAND/SEP-related articles that are available on ssrn.  One is by Joseph Alfred and is titled Licensing SEPs-Round 3Here is a link, and here is the abstract:


Patents that are essential to a standard must be licensed in a fair, reasonable and non-discriminatory manner. If we understand the English and legal meaning of these words, there is no wiggle room for so-called super FRAND rates nor for charging a premium for a standard essential patent (SEP). We should be able to ask three simple questions and derive a FRAND rate.

Is it fair?—is it impartial, honest, free from favoritism, prejudice and self-interest?


Is it reasonable?—is it just, moderate, fit and appropriate for the end in view?


Is it non-discriminatory?—is it free from conferring privileges on an arbitrary class?


For some licensors seeking to provide wiggle room, these questions are now phrased as follows:


Why should we treat all segments of a supply chain in the same way?

Why not charge 15 times more for a WiFi chipset in a smart car?

Why not treat smart cars differently than smartphones?


2. The other article in the aforementioned volume is titled LESI FRAND/SEP Study.  Here is a link, and here is the abstract:


FRAND/SEP litigation and licensing is of utmost practical importance in an increasingly connected world and grabbing the headlines globally. So, a good time for LESI’s Dispute Resolution Committee to provide a study comparing the current state of play (July 1, 2021) in the major jurisdictions for such disputes, namely Germany, the UK, The Netherlands, France, the United States, China and Japan. We are very grateful and thankful to all of our authors, being extremely busy top-tier patent litigators in their respective jurisdictions to have delivered a very practical and hands-on guide to Fair Reasonable and Non-discriminatory/Standard-Essential Patent (FRAND/SEP) litigation and licensing within a short time frame. Namely, many thanks to Prof. Dr. Tilman Müller-Stoy and Alexander Haertel, Bardehle Pagenberg, Germany, to Mary Foord-Weston and David Wilson, Carpmaels & Ransford, UK, to Rien Broekstra, Boukje van der Maazen and Daan de Lange, Brinkhof, The Netherlands, to Marie-Ange Pozzo di Borgo and Jean-Hyacinthe de Mitry, Gide Loyrette Nouel, France, to Doug Lumish and Alan Devlin, Latham & Watkins, USA, to Nongfan Zhu, KWM, China, and to Yasufumi Shiroyama, Anderson Mori & Tomotsune, Japan. All opinions and views expressed within the following comparative study are solely the authors’ opinions and views and do not reflect the opinions, views and beliefs of their law firms, clients and/or other third parties.


3. Mark Cohen published a post recently on the China IPR Blog titled Recent Translations and Comments on Laws and Cases, which includes a link to and discussion of an unofficial translation of the Supreme Court of China’s Ruling on Jurisdictional Objection Appeal in OPPO v. Sharp.


4.  Tess Waldron published an essay on Law360 titled What SEP Holders CanTake Away from UK’s Apple Ruling.  The post provides a nice summary of key aspects of Mr. Justice Meade’s recent decision in this case, previously noted here.

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