FRAND Licensing Commitments – Back to First Principles
World Patent Information 2021
19 Pages Posted: 8 Jul 2021 Last revised: 31 Dec 2021
Date Written: May 23, 2021
The UK Supreme Court in Unwired Planet v Huawei addressed several issues relating to promises to license Standard Essential Patents (SEPs) on fair, reasonable, and nondiscriminatory (FRAND) terms – an English court’s jurisdiction to set worldwide terms; non-discrimination; the negotiation process to be followed, and the proportionality test for a FRAND injunction. This paper critically reviews the judgment, in the light of first principles derived from competition law, which should govern the interpretation of commitments to license under applicable contract law. In this light, it discusses injunctions, the definition of willing licensor and licensee, the need for an effective proportionality assessment, methods for rate setting, the setting of worldwide rates by national courts, and the various components of FRAND.
Keywords: competition law, antitrust, standards, SEPs, FRAND, Standard Essential Patents
JEL Classification: K21
Suggested Citation: Suggested Citation