SEPs Licensing Across the Supply Chain: An Antitrust Perspective

DEEP-IN Research Paper, 2021

20 Pages Posted: 17 Feb 2021

See all articles by Oscar Borgogno

Oscar Borgogno

Bank of Italy; University of Turin, Faculty of Law; University of Oxford, Saïd Business School, Faculty of Law

Giuseppe Colangelo

University of Basilicata, Department of Mathematics, Computer Science and Economics; Stanford Law School; LUISS Guido Carli, Department of Business and Management

Date Written: January 14, 2021

Abstract

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

Borgogno, Oscar and Colangelo, Giuseppe, SEPs Licensing Across the Supply Chain: An Antitrust Perspective (January 14, 2021). DEEP-IN Research Paper, 2021, Available at SSRN: https://ssrn.com/abstract=3766118

Oscar Borgogno

Bank of Italy ( email )

Via Nazionale 91
00184 Roma
Italy

University of Turin, Faculty of Law ( email )

Torino
Italy

HOME PAGE: http://www.dg.unito.it/do/docenti.pl/Show?_id=oborgogn#profilo

University of Oxford, Saïd Business School, Faculty of Law

St Cross Building
St Cross Rd
Oxford
United Kingdom

Giuseppe Colangelo (Contact Author)

University of Basilicata, Department of Mathematics, Computer Science and Economics ( email )

Via dell'Ateneo Lucano 10
Potenza
Italy

HOME PAGE: http://sites.google.com/site/giuseppecolangelouni/home

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://law.stanford.edu/transatlantic-technology-law-forum/

LUISS Guido Carli, Department of Business and Management ( email )

Viale Romania 32
Rome, Roma 00197
Italy

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