Monday, October 11, 2021

Recent Papers on FRAND Issues and Dispute Resolution

1. Jorge Contreras has posted on ssrn a short paper titled Anti-Suit Injunctions and Jurisdictional Competition In Global FRAND Litigation: The Case For Judicial RestraintHere is a link, and here is the abstract:

The proliferation of international jurisdictional conflicts and competing “anti-suit injunctions” in litigation over the licensing of standards-essential patents has raised concerns among policy makers in the United States, Europe and China. This article suggests that national courts temporarily “stand down” from assessing global “fair, reasonable and nondiscriminatory” (FRAND) royalty rates while international bodies develop a more comprehensive, efficient and transparent methodology for resolving issues around FRAND licensing. 

2.  Kung-Chung Liu has published a short paper titled Arbitration by SSOs as a Preferred Solution for Solving the FRAND Licensing of SEPs?, 52 IIC 673-76 (2021).  The author argues that the competition agencies of the U.S., E.U., Taiwan, South Korea, and the People's Republic of China should "form a consortium to oversee the self-regulation of SSOs, including [an] arbitration service, in a way that best addresses the three drawbacks" the author perceives to be "associated with traditional arbitration."  For Lord Justice Richard Arnold's proposal for mandatory arbitration of SSO disputes, see here.   

3.  Not directly relevant to dispute resolution, as such, but of interest to followers of FRAND/SEP matters are these recent blog posts:  (1) Curtis Dodd & Arty Rajendra, Allegedly 'Late' Disclosure of IP Rights Does not Make Patents Unenforceable in the U.S. or U.K., IP Watchdog, Sept. 23, 2021 (discussing U.S. decisions in Core Wireless/Convesant Wireless v. Apple and Optis v. Apple, and the recent English decision in Optis v. Apple (UK) (previously noted here and here); (2) Tim Pohlmann, The Role of Standard-Essential Patents in the Auto Industry, IP Watchdog, Sept. 27, 2021; and (3) a two-part series by Mark Selwyn, Tim Syrett, and Alix Pisani titled Opinion: Skirting FRAND requirements under the guise of promoting innovation and efficiency, IPKat, Sept. 24 & Oct. 7, 2021.  Also of considerable interest is a post by Nick Fischer and Graham Burnett-Hall on EPLaw, titled UK-Optis Cellular v. Apple Retail, discussing and providing a link to Mr. Justice Meade's September 27 opinion in  the  U.K. Apple SEP dispute; I will probably have more to say about this after I have had some time to digest the opinion myself.

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