Non-Discrimination: FRAND's Last Stand?

CPI Antitrust Chronicle (Dec. 2020)

9 Pages Posted: 5 Feb 2021

See all articles by Jorge L. Contreras

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Richard Gilbert

University of California, Berkeley

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

Contreras, Jorge L. and Gilbert, Richard, Non-Discrimination: FRAND's Last Stand? (December 22, 2020). CPI Antitrust Chronicle (Dec. 2020), Available at SSRN: https://ssrn.com/abstract=3753827

Jorge L. Contreras (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Richard Gilbert

University of California, Berkeley ( email )

Department of Economics
530 Evans Hall #3880
Berkeley, CA 94720
United States
510 339 6493 (Phone)

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