Unfriendly Choice of Law in FRAND

86 Pages Posted: 21 Oct 2019 Last revised: 31 Oct 2019

See all articles by Dicky Tsang King Fung

Dicky Tsang King Fung

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Jyh-An Lee

The Chinese University of Hong Kong (CUHK) - Faculty of Law

Date Written: October 10, 2019

Abstract

Standards are technical specifications providing a common design for products or processes to function compatibly with others. Standards are pervasive in various communications and platform technologies since they facilitate interoperability between different products. These technical standards inevitably cover a large number of patented technologies standard implementers must use, which are referred to as standard-essential patents (SEPs). SEPs are normally subject to fair, reasonable, and non-discriminatory (FRAND) terms based on SEP holders’ declarations made to voluntary associations known as standard-setting organizations (SSOs) or standards-development organizations (SDOs). In recent years, the increasing use of standards and SEPs has led to an increased number of lawsuits relevant to the interpretation and enforcement of FRAND terms. As a result, legal issues surrounding FRAND have become a subject of litigation and academic debate. This Article is an endeavor to fill the gap in academic literature on the choice-of-law issues relating to FRAND. It seeks to provide readers with a deeper understanding of the choice-of-law issues as revealed by key judicial precedents around the world. Ultimately, this research attempts to suggest practical solutions that may mitigate, if not resolve, the choice-of-law issues.

Keywords: FRAND, standard-essential patent, choice of law, characterization, contract

Suggested Citation

Tsang King Fung, Dicky and Lee, Jyh-An, Unfriendly Choice of Law in FRAND (October 10, 2019). Virginia Journal of International Law, Vol. 59, No. 2, 2019, Available at SSRN: https://ssrn.com/abstract=3467370

Dicky Tsang King Fung

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

Jyh-An Lee (Contact Author)

The Chinese University of Hong Kong (CUHK) - Faculty of Law ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Hong Kong

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