The History of the ETSI IPR Policy: Using the Historical Record to Inform Application of the ETSI FRAND Obligation

35 Pages Posted: 17 Oct 2022

Date Written: September 27, 2022

Abstract

The European Telecommunications Standards Institute (ETSI) is responsible for developing and promulgating modern cellular standards such as LTE and 5G. These mainstream cellular standards are expanding throughout the economy, particularly with the adoption and growth of new cellular standards for the “Internet of Things” (IOT), whereby diverse new industries such as energy, medical, automotive, appliances, warehousing and many others are all currently adopting and incorporating cellular functionality to connect their products wirelessly to the global communications system.

Many of the technologies used in those standards are patented by ETSI members, who collectively agree on which technologies to include in a standard (e.g., their own) and which to exclude (e.g., those patented by others). More than thirty years ago, government competition agencies told ETSI that these patent issues – if not constrained in some way – would cause competition law problems and potentially antitrust enforcement against ETSI or its members. ETSI had a responsibility to prevent its members from using the standardization process, and their patents included in the standards they develop, to entrench their own business interests while excluding competitors.

ETSI drafted and ultimately adopted a policy whereby members would commit to license their patents – known as standard-essential patents (SEPs) – on fair, reasonable and non-discriminatory (FRAND) terms. Companies, lawyers, government representatives, competition law experts, lobbyists, ambassadors, and scholars have been arguing over what FRAND means and requires ever since. Billions of dollars in annual patent licensing royalties are at stake.

Rather than addressing ETSI’s FRAND policy from the more common perspective – arguing about what it should mean or what policy approaches are best – in this paper, the authors take a fresh approach focusing on a historical review and analysis of what the drafters of the ETSI FRAND policy intended and believed that it did mean at the time they wrote and approved it. While many of ETSI’s records are maintained as confidential to ETSI members, this paper results from an extensive review of publicly available materials dating from the period when the ETSI FRAND policy was developed and enacted, and reports on the contemporaneous accounts of those involved. The authors then apply these historical documents and accounts to assess key issues in today’s policy and legal disputes. The results show that many of the issues spawning debates about interpretation of the ETSI policy were expressly addressed by the ETSI drafters at the time that the ETSI IPR Policy was created and approved, and that significant historical evidence is available regarding the expressly intended meaning and application of ETSI FRAND policy.

Keywords: ETSI, IPR, FRAND, SEP, standard, standard-essential, patent

Suggested Citation

Pocknell, Robert and Djavaherian, Dave, The History of the ETSI IPR Policy: Using the Historical Record to Inform Application of the ETSI FRAND Obligation (September 27, 2022). Available at SSRN: https://ssrn.com/abstract=4231645 or http://dx.doi.org/10.2139/ssrn.4231645

Robert Pocknell

N&M Consultancy ( email )

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