SEPs Licensing Across the Supply Chain: An Antitrust Perspective
DEEP-IN Research Paper; TOELI Research Paper (2021); a modified version of the paper is forthcoming in "Queen Mary Journal of Intellectual Property"
26 Pages Posted: 17 Feb 2021 Last revised: 8 May 2021
Date Written: April 16, 2021
The rise of the Internet of Things (IoT) and the development of 5G are set to add a new layer of complexity to the current practice of standard essential patents (SEPs) licensing. While, until recently, the debate has centred on the nature of fair, reasonable and non-discriminatory (FRAND) commitments and the mechanisms to avoid hold-up and reverse hold-up problems between licensors and licensees, a new hotly-debated issue has now emerged. At its core is the question of whether SEP holders should be required to grant a FRAND licence to any implementer seeking a licence, including component makers (so-called ‘licence-to-all’ approach), or if they should be allowed freely to target the supply chain level at which the licence is to be granted (so-called ‘access-for-all’ approach). After providing an up-to-date overview of the current legal and economic debate, the paper focuses on the most recent antitrust case law dealing with the matter on both sides of the Atlantic and argues that no sound economic and legal bases which favour licence-to-all solutions can be identified.
Keywords: Standard Essential Patents; Licensing Levels; FRAND; Supply Chain; Automotive Industry; Antitrust
JEL Classification: K21, L15, L24, L41, L62, L96, O30
Suggested Citation: Suggested Citation