Friday, March 2, 2018

Three New FRAND Articles in GRUR

Readers might be interested in these three articles in the February 2018 issue of GRUR. 

1.  Mary-Rose McGuire has published Anwendbares Recht, Rechtsnatur und Bindungswirkung am Beispiel eines ETSI-Standards ("Applicable Law, Legal Nature, and Binding Effect through the Example of an ETSI-Standard"), 2/2018 GRUR 128-35.  Here is the abstract (my translation from the German):
In FRAND disputes, the question ever more frequently arises whether the rightsholder is directly hindered from asserting a claim for injunctive relief, or whether it has granted the prospective licensee only a right to use.  At the same time, one observes that the parties advocate not only contrary opinions with regard to the applicable law, the legal nature and the binding effect of a FRAND declaration, but also that they can appeal to opposing voices in the case law and literature.  All three questions achieve special relevance in the case of the transfer of an SEP prior to licenses.  This essay provides an overview of the state of the discussion and, using the example of an ETSI standard, demonstrates that the foregoing questions cannot be satisfactorily resolved so long as a careful IP rights analysis does not precede them.  The steps necessary for such an examination are presented.  
2.  Constantin Kurtz and Wolfgang Straub have published Die Bestimmung des FRAND-Lizenzsatzes für SEP ("The Determination of FRAND License Rates for SEPs") in 2/2018 GRUR 136-44.  Here is the abstract (again, my translation):
Ultimately the central question in SEP disputes is the amount of the fair and reasonable license rate, and how one determines it.  Once this is clarified, the parties can implement the conditions set out by the CJEU in Huawei/ZTE.  The following essay presents a practical and competition-law compliant way for making this determination.
If I understand correctly, the authors are advocating a top-down type of approach involving the use of expert evidence to determine, first, the aggregate royalty burden for products such as mobile phones, and second the number of relevant, valid, and essential SEPs reading on the device; and then allocating a royalty based on numeric proportionality (patent counting).   They also advocate evaluating a representative sample of the patentee's SEPs to get a sense of the portion that are valid and essential.

3. Antje Baumann has published Einschaltung von Schiedsgerichten zur Bestimmung der FRAND-Konditionen ("Involvement of Arbitration Tribunals in Determining FRAND Conditions"), 2/2018 GRUR 145-53.  Here is the abstract (my translation):
The rules of several standard setting organizations permit FRAND disputes between their members to be resolved in an arbitration proceeding.  As a result, in recent years many publications have addressed the decision of FRAND conditions by arbitration tribunals.  But neither the legality of these arbitration clauses nor the question of whether and why voluntary arbitration agreements may be more advantageous than compulsory arbitration has received much attention.  The following essay addresses these aspects, and further investigates whether the US proposal for final-offer arbitration is an alternative for an efficient disposal of FRAND disputes.
The author is supportive of voluntary arbitration as a means of settling FRAND disputes.

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