Wednesday, September 18, 2019

New Papers, Posts on SEP, FRAND Issues

1.  Beatriz Conde Gallego and Josef Drexl have published an article titled IoT Connectivity Standards:  How Adaptive is the Current SEP Regulatory Framework?, 50 IIC 135 (2019).  Here is a link to the paper, and here is the abstract:
The Internet of Things is advancing as a new technological paradigm with enormous economic and societal implications. Network connectivity provides the basis. With this in mind, past and current conflicts surrounding the licensing and enforcement of standard essential patents (SEPs) in the information and communications technology (ICT) sector cast a shadow over IoT development. Focusing on the European approach based on competition law, this article explores the extent to which the existing legal framework, which has been mainly developed against the backdrop of problems in the mobile industry, will be capable of responding adequately to the challenges raised by the IoT. 
2.  Peter Picht has posted a paper on ssrn titled Confidentiality in SEP/FRAND Cases-A Criticial Overview of the Recent Legal DevelopmentsHere is a link, and here is the abstract:
The protection of confidential information looms large in the SEP/FRAND area. A paramount issue is the disclosure of existing license contracts to show, in negotiations or in court, the FRAND compliance of a license offer. Disclosing third-party licenses does, however, come at a cost: On a content level, such contracts oftentimes contain business secrets which neither the licensor nor the licensee wish to share. On a legal level, third-party licenses will usually contain confidentiality clauses prohibiting both parties from disclosing the contract. These aspects create an intricate tension between public and party interests. Against this background, the paper analyzes the existing case law and literature in as well as outside the SEP/FRAND context, points out recent legislative developments, and suggests some improvements to the legal framework.
3.  Jonas Block and Benjamin Rätz have published an article titled Das FRAND-Angebot – Versuch einer internationalen Definition ("The FRAND offer – an attempt at an international definition"), GRUR 08/2019, 797. Here is the abstract (authors' own English translation from the original German):
According to the CJEU’s decision in Huawei Technologies v. ZTE Corp et al, the holder of standard essential patents must submit a license offer to a potential infringer under "fair, reasonable and non-discriminatory" (FRAND) conditions in order to meet its obligations under competition law. German courts and foreign courts judge differently the requirements that such an offer has to meet. The authors therefore attempt to define the term "FRAND offer" according to the CJEU’s criteria within an international context. Firstly, they show that FRAND is to be understood as a corridor, comprising a number of different contractual arrangements. The authors then come to the conclusion that the term FRAND offer is to be understood primarily in economic terms, in that it does not constitute a new offer as understood by contract law when individual contractual modalities are in the course of contract negotiations adapted to the economic circumstances. The authors suggest that this aspect has not been sufficiently considered in recent German case law.
4.  I previously mentioned posts on IPKat and Kluwer regarding the Sisvel v. Xiaomi litigation, in which a Dutch court denied Sisvel a preliminary injunction.  Amy Sandys recently published a post as well on JUVE Patent, which places this litigation in the context of some other FRAND disputes in the Netherlands and other FRAND disputes involving these parties elsewhere.  And on IPWatchdog, James Nurton published a post titled Searching for Answers to the Standard Essential Patents Problem, which discusses, among other matters,the upcoming (in October) Unwired Planet appeal in the U.K.

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