5G, FRAND Licensing, and EU Competition Law: Analytical Rigor and Persistent Myths

By Paul Lugard

It is now undisputed that 5G and IoT will revolutionize many industries, from energy to healthcare, manufacturing, and mobility. The dissemination of 5G cellular technology, connecting devices to the Internet on the basis of technical interoperability standards, will generate very significant consumer benefits. However, as 5G technology is designed for many different uses and parties situated at multiple and different levels in the production chain may request licenses from SEP holders, the question arises whether antitrust law sets any limits to SEP holders’ discretion to offer FRAND licenses to interested parties. Not surprisingly, proponents of indiscriminate dissemination of 5G technology sometimes claim that there is an antitrust duty to offer licenses to all such interested parties. This contribution briefly discusses a number of necessary conditions that must be met to conclude that such an affirmative duty exists. Along the way it seeks to dispel a few popular antitrust myths in the area of SEP licensing.