Standards Setting, Standards Development and Division of the Gains from Standardization

Standards Setting, Standards Development and Division of the Gains from Standardization

By David J. Teece and Edward F. Sherry – According to this article, standards development frequently involves significant R&D and related investments by technology contributors. These contributions benefit the standard setting process and therefore the implementers that use the standards, and consumers that buy the product. It is important that technology contributors are rewarded for […]

FRAND Licensing In Theory And In Practice: Proposal For A Common Framework

FRAND Licensing In Theory And In Practice: Proposal For A Common Framework

By Justus A. Baron, Chryssoula Pentheroudakis & Nikolaus Thumm – This article addresses how FRAND licensing terms have been determined in theory and practice in multiple jurisdictions worldwide. In the study referred in this article, the authors review the evolving case law on FRAND from both a legal and economic perspective, and perform a comparative […]

FRAND Arbitration: The Determination of Fair, Reasonable and Non-Discriminatory Rates for SEPs by Arbitral Tribunals

FRAND Arbitration: The Determination of Fair, Reasonable and Non-Discriminatory Rates for SEPs by Arbitral Tribunals

By Damien Geradin – This paper addresses an important policy question, which is whether SEP-related disputes should be subject to mandatory arbitration (as a requirement imposed by SSOs) or whether arbitration should remain one of the possible options open to the parties to settle such disputes. Parties should be free to opt for arbitration, as […]

On the Practical Irrelevance and Theoretical Inadequacy of the Royalty-Stacking Benchmark in Standard-Essential Patent Negotiations

On the Practical Irrelevance and Theoretical Inadequacy of the Royalty-Stacking Benchmark in Standard-Essential Patent Negotiations

By Gerard Llobet & Jorge Padilla – Royalty stacking is the focus of this article. The licensing of SEPs has become a controversial issue. Some companies, IP practitioners and scholars argue that SEP holders are over-rewarded as a result of what they call “patent hold-up” and “royalty stacking.” The proponents of the idea of royalty […]

Antitrust Policy toward Technology Standards

Antitrust Policy toward Technology Standards

By Daniel F. Spulber – This article argues that there is not a conflict between antitrust and technology standards. A better understanding of the economic role of technology standards suggests that standard setting increases competition in product markets and markets for inventions. SSOs and technology standards are vital for entrepreneurs seeking to apply new technologies […]

Exploiting Others’ Investments in Open Standards

Exploiting Others’ Investments in Open Standards

By Scott A. Sher & Bradley T. Tennis – This article is concerned with “unilateral” de facto standards that arise from later entrants adopting products or technologies employed by an established player. Unilateral de facto standards are susceptible to certain forms of abuse because they lack the formal safeguards of de jure standards or the […]

FRAND and the Smallest Saleable Unit

FRAND and the Smallest Saleable Unit

By Joseph Kattan, Janusz Ordover & Allan Shampine – This article discusses the intersection between the SSU rule and FRAND requirements. The FRAND concept intersects with the SSU rule, which is a patent law concept that seeks to limit patent holders’ ability to collect royalties that exceed the contributions of their patents. Although the SSU […]

Innovation Under Threat? An Assessment of the Evidence for Patent Holdup and Royalty Stacking in SEP-Intensive, IT Industries

Innovation Under Threat? An Assessment of the Evidence for Patent Holdup and Royalty Stacking in SEP-Intensive, IT Industries

By Alexander Galetovic & Stephen Haber – Many authors argue that innovation in IT is under threat.For many years Patent Holdup Theory has influenced antitrust thinking and action in SEP-intensive industries. While the theory predicts market failure, SEP-intensive industries have thrived and consumers have benefited from better products at lower prices. Is Patent Holdup a […]

“Excessive Royalty” Prohibitions and the Dangers of Punishing Vigorous Competition and Harming Incentives to Innovate

“Excessive Royalty” Prohibitions and the Dangers of Punishing Vigorous Competition and Harming Incentives to Innovate

By Douglas H. Ginsburg, Bruce H. Kobayashi, Koren W. Wong-Ervin, and Joshua D. Wright This article discusses the dangers of regulating royalties, including the difficult — if not impossible — task of determining whether a particular royalty is “excessive,” and suggest that agencies not apply to IPRs, including SEPs, their laws prohibiting excessive pricing. Should […]

The Resurrection of Essential Facilities Doctrine and Its Applicability in India

The Resurrection of Essential Facilities Doctrine and Its Applicability in India

By Kalyani Singh The controversial essential facilities doctrine recently seems to have resurfaced amidst recent developments in competition law. Specifically, the doctrine has found itself right in the center of the hotly debated interface between competition law and intellectual property rights (“IPRs”). Indian competition law, while still in its teething stage, has been gaining significant […]