FRAND Licensing Levels under EU Law
48 Pages Posted: 13 Feb 2020 Last revised: 20 Feb 2020
Date Written: February 5, 2020
This paper investigates whether EU or national law provide legal authority to impose a direct or indirect obligation on Standard Essential Patent (“SEP”) holders to license at all levels of the value chain, including at component level (“license to all”, hereafter LTA). Extensive analysis of EU text and case-law (general principles of EU law, patent, contract and competition laws) suggests that there are only very limited doctrinal grounds to impose an LTA obligation on SEP holders that made a FRAND commitment. Similarly, French contract law – which applies to FRAND-committed SEP before the European standard setting organisation ETSI – does not give rise to a legal basis for the introduction of a ‘license to all’ regime. In the rare cases where licensing obligations might be imposed on SEP holders, these would effectively be akin to compulsory licensing, where public policy calls for restraint.
Keywords: FRAND, SEPs, Internet of Things, value chain licensing
JEL Classification: K10, K12, K20, K21
Suggested Citation: Suggested Citation