Some New Papers on FRAND, SEPs, and Related Issues

1.  Denis Borges Barbosa has posted a paper on ssrn titled Patents, Technical Standards and Frand License Offerings Under Brazilian Law.  Here is a link to the paper, and here is the abstract:

The matter of RAND or FRAND licences in connection to patents deemed to be essential to the establishment of some technical standards, and subject to the rules of some Standard Setting Organizations (SSO) is a much discussed legal issue. At this moment this theme is reviewed by the courts of a number of different jurisdictions. As it also concerns some legal actions under course in Brazil, this study covers the aspects of local law that might be pertinent to such an issue. 

2.  Ben Jonson has published a paper titled Public Standards and Patent Damages, 14 John Marshall Review of Intellectual Property Law 199 (2015).  Here is a link to the paper, and here is the abstract:

Some markets require legislation in order to exist. The products and/or services offered by those markets may be covered by one or more letters patent. In certain of those markets, a situation arises in which a private party owns a right to exclude others from participating in that publicly-enabled market. These situations may be referred to “public standards.” Like their cousins in the private sector, public standards require special consideration when it comes to determining potential compensation to the patentee from its competitors. Following the lead of the Western District of Washington, this paper recommends a modification of the traditional Georgia-Pacific reasonable royalty formulation for a patent damages calculation. Specifically, this paper recommends that calculating damages for public standard patents should require an explicit, thorough consideration of the public interest in addition to the patents themselves and the relationship of the involved parties. Only then will the interests of the public be adequately protected.

3. Björn Lundkvist has posted a paper titled Competition Law as the Limit to Standard-Setting (forthcoming in Josef Drexl and Fabiana Di Porto (eds.), "Competition Law as Regulation," Edward Elgar, 2015).  Here is a link to the paper, and here is the abstract:

The aim of this paper is to provide an analysis of the application of EU competition law to standard-setting, by looking at case law under both Articles 101 and 102 TFEU. I will try to show that there is, and should be, a difference in competition law treatment of standards and standard-setting conduct depending on whether the market exposed to the standard is plagued with network effects or not. For markets with network effects, collaboration to create standards is benign, even pro-competitive, while access to such standards, if covered by intellectual property rights, may, in exceptional circumstances, be granted under competition law. On the other hand, agreements to decide standards for markets which do not display network effects should benefit from a heightened antitrust scrutiny, because these standard agreements may cause exclusionary anticompetitive effects. 

The last part of the paper devotes some attention to the Motorola and Samsung FRAND matters in the E.U., as well as the U.S. Federal Trade Commission's Google settlement order.