Wednesday, November 23, 2022

Some New FRAND-Related Papers

1. Nicolas Petit and Amandine Léonard have posted a paper on ssrn titled FRAND Royalties:  Rules v. Standards?, forthcoming in the Chicago-Kent Journal of Intellectual Property.  Here is a link to the paper, and here is the abstract:

Royalties for intellectual property (IP) are like taxes. Everyone agrees that some limits are necessary. However, no one agrees on the levels at which the limits should be set. One way to overcome disagreement consists in asking if a legal rule or standard should govern the limits of IP royalties. This paper discusses this issue in the context of Standard Essential Patents ("SEPs") governed by a commitment to license on Fair Reasonable and Non Discriminatory ("FRAND") terms. The paper find that FRAND rules generally surpass standards, but only under specific conditions.

2. Peter Picht has posted a paper on ssrn titled Arbitration in SEP/FRAND Disputes, in Research Handbook on Intellectual Property Rights and Arbitration (Kolpschinski & McGuire eds.,  Edward Elgar forthcoming 2023).  Here is a link to the paper, and here is the abstract:

This chapter analyses recent developments and key issues in arbitrating FRAND disputes. It addresses, inter alia, the European Commission's position on the matter and proposals made by its SEP expert group; whether FRAND arbitration can be made mandatory; how successful FRAND arbitration may be conducted procedurally; and which are typical key matters surfacing in such proceedings.

3. Jorge Contreras and numerous coauthors have posted a paper titled Preserving the Royalty-Free Standards Ecosystem.  Here is a link, and here is the abstract:


It has long been recognized in Europe and elsewhere that standards-development organizations (SDOs) may adopt policies that require their participants to license patents essential to the SDO’s standards (standards-essential patents or SEPs) to manufacturers of standardized products (“implementers”) on a royalty-free (RF) basis. This requirement contrasts with SDO policies that permit SEP holders to charge implementers monetary patent royalties, sometimes on terms that are specified as “fair, reasonable and nondiscriminatory” (FRAND). As demonstrated by two decades of intensive litigation around the world, FRAND royalties have given rise to intractable disputes regarding the manner in which such royalties should be calculated and adjudicated. In contrast, standards distributed on an RF basis are comparatively free from litigation and the attendant transaction costs. Accordingly, numerous SDOs around the world have adopted RF licensing policies and many widely adopted standards, including Bluetooth, USB, IPv6, HTTP, HTML and XML, are distributed on an RF basis. This note briefly discusses the commercial considerations surrounding RF standards, the relationship between RF standards and open source software (OSS) and the SDO policy mechanisms – including “universal reciprocity” -- that enable RF licensing to succeed in the marketplace.

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