Non-Discrimination: FRAND's Last Stand?
CPI Antitrust Chronicle (Dec. 2020)
9 Pages Posted: 5 Feb 2021
Date Written: December 22, 2020
Abstract
In this essay, we explore possible interpretations of this component of the FRAND commitment and the conclusions of two courts that have examined this issue. Enforcement of the ND prong enables a level playing field for competition and investment by SEP licensees. Moreover, enforcement of the ND prong can be an effective means to assess fair and reasonable royalty rates in the fractious environment of FRAND compliance under some circumstances. If SEP holders commit to royalty terms before a standard is approved and released by the SDO, and if the ND prong of the FRAND commitment requires that such terms apply to future licensing negotiations, this would have the ancillary benefit of mitigating concerns about holdup that might arise after firms and consumers have committed to the standard.
Keywords: FRAND, patent, standard, standards-essential patent, SEP, non-discrimination
Suggested Citation: Suggested Citation