Thursday, October 13, 2022

Some More New FRAND Papers

1.  Renato Nazzini has posted a paper on ssrn titled Global Licences under Threat of Injunctions: FRAND Commitments, Competition Law and Jurisdictional BattlesHere is a link, and here is the abstract:

This paper examines three, intertwined questions arising from recent case law on global FRAND licences under threat of injunction. Firstly, whether the obligation of an implementer to enter into a global licence of all the SEP owner’s relevant SEPs on pain of a national injunction is consistent with the policies underpinning a SEP owner’s obligation to grant a FRAND licence. Secondly, whether the conduct of a SEP owner insisting on an implementer entering into a global licence under threat of an injunction is compatible with the UK Chapter II prohibition and Article 102 TFEU. Thirdly, whether the assumption and exercise by national courts of the power to settle the terms of global licences is a rational way of resolving global FRAND licensing disputes. On all three counts, the conclusion is that departing from territorial jurisdiction in the matter of FRAND licences is not advisable as it has the effect of distorting the incentives of SEP owners and implementers in such a way that FRAND licences and FRAND negotiations are less likely to reflect, or be driven by, the value of the underlying technology. As a result, global FRAND licences may apply excessive royalties or royalties for SEPs that are invalid, not essential, or not infringed. A system of national enforcement is better suited to striking a right balance between the interests of SEP owners and implementers, producing better outcomes in terms of effects on social welfare and productivity.

2. Matthias Leistner and Lukas Kleeberger have published FRAND-Erklärungen ohne Rechtswahl am Beispiel der Standardisierungsorganisationen ITU/ISO/IEC:  Ein praxisrelevantes dogmatisches Problem im internationalen Privatrecht (“FRAND Declarations with Choice of Law, on the Example of the Standard-Setting Organizations ITU/ISO/IEC:  A Practical, Dogmatic Problem in International Private Law”), 17-18 GRUR  Here is the abstract: 1261 (2022).  Here is the abstract, in my translation from the German:

Up to now, the contractual effects of common FRAND declarations have played a comparatively smaller role in German than in English case law.  This is beginning to change, especially in the literature and case law, as the effects of the ETSI-FRAND declaration increasingly will be explicitly and more precisely examined.  In this regard, the following contribution fills what is, for legal practice, a significant gap:  it frames the FRAND declarations of the standard-setting organizations ITU/ISO/IEC within the context of conflict of laws and contract law, and addresses the fundamental problem of the appropriate application of private international law to FRAND declarations absent a choice-of-law clause.

3.  Patricia Cappuyns and Narmeen Al Ganim have an article coming out in JIPLP titled  Four times FRAND: an analysis of recent judgments from the UK, Germany, the Netherlands and France, and lessons for the upcoming UPC systemHere is a link and here is the abstract:


In Huawei v ZTE, a number of issues regarding the enforcement and licensing of standard essential patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) terms were not addressed or resolved by the Court of Justice of the European Union (CJEU).  This article aims at summarizing the sometimes diverging guidance provided by the main national European courts in FRAND cases and focuses on these issues.  For this purpose, we contrast the recent FRAND case law in the UK, Germany, the Netherlands and France over the last three years.

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