A Brief History of FRAND

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

January 15, 2015

Antitrust Law Journal, Forthcoming
American University, WCL Research Paper No. 2014-18

Much has been written about the commitments that firms participating in standards-setting make to license their patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). These discussions pay little attention, however, to more than a hundred remedial patent licensing decrees issued by federal courts from the 1940s through 1970s that outwardly resemble FRAND commitments in all but the rationale for their imposition. These early decrees shed light on questions only now re-emerging as key to the FRAND debate: the meaning of the non-discrimination prong of the FRAND commitment, the degree to which courts should intervene in the determination of reasonable royalty rates, the use of arbitration as a means for resolving licensing disputes, the factors to consider in determining a reasonable royalty rate, the extent to which royalty-free licensing may be “reasonable”, the effects of a potential licensee’s refusal to accept a patent holder’s license offer, the acceptability of a patent holder’s demand for reciprocal licenses from its licensees, and means for ensuring that such commitments survive the transfer of underlying patents.

This article offers the first historical analysis of the patent licensing decrees issued from the 1940s through the 1970s and assesses their relationship to the FRAND commitments of today. It concludes that these historical patent licensing decrees are, in fact, the direct lineal predecessors of contemporary FRAND commitments, and that despite their differences, the historical interpretation and analysis of these remedial orders by courts, enforcement agencies and private litigants offer essential insight into the interpretation of FRAND commitments today.

Number of Pages in PDF File: 71

Keywords: standards, antitrust, FRAND, RAND, patent, compulsory licensing, misuse

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Date posted: January 29, 2014 ; Last revised: February 27, 2015

Suggested Citation

Contreras, Jorge L., A Brief History of FRAND (January 15, 2015). Antitrust Law Journal, Forthcoming; American University, WCL Research Paper No. 2014-18. Available at SSRN: http://ssrn.com/abstract=2374983 or http://dx.doi.org/10.2139/ssrn.2374983

Contact Information

Jorge L. Contreras (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States

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