Thursday, August 18, 2022

Some New Papers on FRAND Topics

1. Jorge Contreras has posted a paper on ssrn titled National FRAND Rate-Setting Legislation: A Cure For International Jurisdictional Competition In Standards-Essential Patent Litigation?, CPI Antitrust Chronicle, July 2022.  Here is a link to the paper, and here is the abstract:

            Courts have increasingly been asked to adjudicate disputes over the level of fair, reasonable and nondiscriminatory (“FRAND”) royalty rates that holders of standards-essential patents (“SEPs”) are permitted to charge manufacturers of standardized products. Courts making these determinations may assess FRAND rates only as to SEPs issued in their own countries (the “national FRAND approach”) or as to all SEPs worldwide that would be included in a license had it been negotiated by the parties (the “global FRAND approach”). These competing approaches are discussed below, along with some of the international jurisdictional issues that they have raised and potential legislative solutions that could address these issues.

2. Roya Ghafele has published a paper titled (F)randonomics, 20 Colorado Tech. L.J. 63 (2022).  Here is a link to the paper, and here is the abstract:

            (F)RAND royalty rates for standard essential patents (SEPs) can and have been determined by Courts around the world. The question whether it is possible to determine (F)RAND rates does not present itself. This article offers an overview of the ‘Top Down’ and the ‘Comparable License Approach’ as they have been frequently recognized by Courts across the globe. The reasoning Courts have employed when making use of the methods are described to the extent possible in a neutral manner, as to offer further insights into the two most commonly methods employed to establish a (F)RAND royalty rate. The Top Down approach conventionally begins with calculating the total aggregate royalty burden for all patents reading on a particular standard and then continues to distribute the aggregate royalty rate among the various SEPs owners. The approach does not rely on information about other licensing transactions and can hence offer insights, which the comparable licenses approach can’t offer. The comparable license approach again can be argued to be probative as to what constitutes a reasonable royalty rate as actual licenses can reflect the economic value of the patented technology in ‘real world scenarios.’ It is a fairly practical method. Both the Top Down Approach and the Comparable Licenses approach can be used as a main method or as a sensitivity check. This overview of (F)RAND royalty rates that have been determined in the context of Court proceedings is by no means exhaustive.

3. Gustav Brismark and Bowman Heiden have posted a paper on ssrn titled Licensing 2.0: How to Incentivise around the Prisoner’s Dilemma in SEP Licensing.  Here is a link, and here is the abstract:

            Licensing platforms are a clear example of a collective action problem, where groups have aligned long-term interests but misaligned short-term goals. Customised incentives can be a key way to facilitate socially desirable collective action, especially where a market or platform includes a range of different actors. Sisvel’s LIFT model for WiFi 6 uses a system of deferred payments to link royalties payments to the uptake of the licensing programme so as to encourage early adopters.

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