License to All or Access to All? A Law and Economics Assessment of Standard Development Organizations’ Licensing Rules

42 Pages Posted: 17 Jun 2020 Last revised: 11 Sep 2020

See all articles by Anne Layne-Farrar

Anne Layne-Farrar

Charles River Associates; Northwestern University

Richard Stark

affiliation not provided to SSRN

Date Written: September 10, 2020

Abstract

In the continuing debate over licensing standard essential patents (SEPs) with FRAND commitments (to license on fair, reasonable, and non-discriminatory terms and conditions), one of the most heated topics is whether FRAND commitments should be interpreted to require licensing all comers, or whether access to standards can be achieved through other, less rigid means. This article evaluates both the legal and the economic arguments underlying this debate. This article concludes that neither the law nor economic welfare justifies a “license to all” interpretation of FRAND commitments. To the contrary, such a regime is not supported by patent, contract or antitrust law, and likely would be harmful to social welfare.

Keywords: SEP, FRAND, Patent, License, Antitrust, Standard Essential Patent

JEL Classification: K

Suggested Citation

Layne-Farrar, Anne and Stark, Richard, License to All or Access to All? A Law and Economics Assessment of Standard Development Organizations’ Licensing Rules (September 10, 2020). George Washington Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3612954 or http://dx.doi.org/10.2139/ssrn.3612954

Anne Layne-Farrar

Charles River Associates ( email )

1 South Wacker Drive
Suite 3400
Chicago, IL 60606
United States
312-377-9238 (Phone)

HOME PAGE: http://www.crai.com

Northwestern University ( email )

2001 Sheridan Road
Evanston, IL 60208
United States

Richard Stark (Contact Author)

affiliation not provided to SSRN

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