FRAND Licensing Commitments – Back to First Principles

World Patent Information 2021

19 Pages Posted: 8 Jul 2021 Last revised: 31 Dec 2021

See all articles by Maurits Dolmans

Maurits Dolmans

Cleary Gottlieb Steen & Hamilton LLP

Date Written: May 23, 2021

Abstract

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

Dolmans, Maurits, FRAND Licensing Commitments – Back to First Principles (May 23, 2021). World Patent Information 2021, Available at SSRN: https://ssrn.com/abstract=3872755

Maurits Dolmans (Contact Author)

Cleary Gottlieb Steen & Hamilton LLP ( email )

2 London Wall Place
London, London EC2Y 5AU
United Kingdom
02076142343 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
56
Abstract Views
180
rank
468,225
PlumX Metrics