Diversified FRAND Enforcement and TRIPS Integrity

(2018) 17(1) World Trade Review 91-120.

Posted: 31 Aug 2018

See all articles by Wenwei Guan

Wenwei Guan

City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law

Date Written: August 23, 2018

Abstract

As an integral part of the WTO trading regime and in line with the international trend of antitrust control, TRIPS harmonized intellectual property protection with competition in mind. However, diverse national FRAND enforcement practices that take either a contractual or an antitrust approach challenge TRIPS integrity. While personal property recognition for SEPs lends constitutional support to the contractual approach to FRAND enforcement, private property's in-built limitation warrants a balance with the antitrust approach for needs from others. A critical examination of the TRIPS conclusion and the analytical structure of TRIPS provisions reveal that TRIPS obligation against anticompetitive practices is imperative. The imbalance of harmonized TRIPS with un-harmonized FRAND practices reflects TRIPS birth defect and challenges TRIPS integrity. To improve balance of rights and obligations in international trade and to ensure innovation and technology dissemination that is conducive to social and economic welfare, the paper calls for a contract–antitrust balanced approach to FRAND enforcement and the resumption of WTO's competition negotiations.

Suggested Citation

Guan, Wenwei, Diversified FRAND Enforcement and TRIPS Integrity (August 23, 2018). (2018) 17(1) World Trade Review 91-120. . Available at SSRN: https://ssrn.com/abstract=3237286

Wenwei Guan (Contact Author)

City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law ( email )

83 Tat Chee Avenue
Room P5300, 5th Floor, Academic 1
Kowloon Tong
Hong Kong

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