Tuesday, November 3, 2015

Loads of New Papers on FRAND, Holdup, and Related Topics, Part 1

1. Julian M. Beach has a paper coming out in volume 54 of the Columbia Journal of Transnational Law titled Transatlantic Frands and Converging Standards: Finding Balance between Jurisdictions in International Standard Setting.  The paper is not on ssrn yet, but the abstract is:
Standard setting organizations provide a global platform for industry leaders to establish partnerships, innovate, create efficiencies, and reduce costs by agreeing on common technological standards and guidelines across borders. The Microsoft v. Motorola cases in U.S. federal court and major developments in enforcement activity by the European Commission antitrust authorities have focused attention over the past five years on the “reasonable and non-discriminatory,” or RAND, commitments that patent holders make toward these organizations. The way courts, scholars, and regulators interpret this language and enforce RAND agreements influences the distribution of liability between parties, the commercial incentives to develop technologies and participate in collaborative standards, and ultimately the continued viability of international standard setting regimes. This note analyzes the most prominent quantitative and qualitative understandings of RAND and makes two connected, resulting contentions. First, it argues that the evolution of a legal framework in both judicial and regulatory spaces must promote a flexible model for licensing negotiation that considers the incentives and importance of standard essential patent holders when binding them to agreements to license at fair rates. Second, it reviews opportunities for reconciliation between the developing regimes for license negotiations in the United States and the European Union and asserts that convergence in practice should motivate further evolution of this crucial intersection of IP and antitrust law.
2.  Brad Biddle has posted a paper on ssrn titled Five Reasons Why Patent Disclosure in Standards-Setting Organizations Doesn't Work (And What to Do Instead)Here is a link to the paper, and here is the abstract:
Patent “hold up” is a risk associated with standard- setting, and requiring or encouraging disclosure of relevant patents by standards developers is one tool used to mitigate this risk. Disclosure has an intuitive appeal and a strong theoretical justification as a method for addressing an informational asymmetry. This paper argues that disclosure simply does not work as a practical matter, however. The paper makes five key assertions: 1. Disclosure rules create an over-disclosure problem. Only a small percentage of patents declared as essential by patent owners are in fact essential for implementation of the standard — an unsurprising fact given the incentives of some parties to err on the side of disclosure. 2. Disclosure rules also result in an under-disclosure problem. For various reasons, certain key parties will have essential patent claims but will not disclose. 3. Disclosure rules suffer from a timing problem. Information is frequently available only after critical decisions have been made. 4. Disclosure rules create an action problem: that is, standards setting organizations are ill-equipped to use the disclosed information in a productive way. 5. Disclosure rules present a complexity and cost problem. Disclosure requirements are complex, ambiguous, and differ widely across SSOs. Participants in the standards development process must bear significant associated costs.
The paper concludes that disclosure is not an effective tool to address patent hold up, and suggests that other tools (such as enhanced “F/RAND” licensing obligations and improved patent valuation methodologies) should be used instead.
3.  This past weekend the Antitrust & Competition Policy Blog noted the publication of CPI Antitrust Chronicle: Autumn 2015, Volume 10 Number 2:  The Huawei-ZTE Decision, which is the follow-up to Volume Number 1:  What's New at the IP and Antitrust Crossroad (mentioned here).  Papers are by Kyriakos Fountoukakos and Nick Root (Huawei Technologies: More Certainty on SEP Injunctions, But Not the End of the Story); Dina Kallay (The ECJ Huawei–ZTE Decision: En Route to Ending Hold-Out?); James Killick and Stratigoula Sakellariou (Huawei v ZTE – No More Need to Look at the Orange Book in SEP Disputes); Nicolas Petit (Huaweï v ZTE: Judicial Conservatism at the Patent-Antitrust Intersection); and  Miguel Rato, Collette Rawnsley & Mark English  (Huawei: Establishing the Legal Standard for a FRAND Defense as a Basis for Resisting Requests for Injunctive Relief for Infringements of SEPs Under Competition Law).  Looks like you need a paid subscription to access the full articles, though.

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