This issue, compiled with Danny Sokol’s guidance, dives into the very murky waters of patents and acronyms—SEPs, FRANDs, non-SEPs among others. As one of our esteemed authors notes, antitrust lawyers and economists are scrutinizing these with “vigor, fascination, and (sometimes) an admirable level of obsession.” So do SEPs (and their relatives) warrant special antitrust consideration? […]

What a Difference a Year Makes: An Emerging Consensus on the Treatment of Standard-Essential Patents

Jonathan Kanter, Oct 15, 2013 These days, it is difficult to identify an antitrust issue that is generating more discussion than standard-essential patents. To some, SEPs are to antitrust what Breaking Bad is to television: a complex and important subject worthy of discussion. To others, SEPs are to antitrust what Miley Cyrus is to pop […]

Patently Obvious: Why Seeking Injunctions on Standard-Essential Patents Subject to a FRAND Commitment Can Violate Section 2 of the Sherman Act

Greg Sivinski, Oct 15, 2013 Technical standards are a necessary exception to a competitive marketplace based upon feature differentiation, but they pose risks because of the market power they confer on holders of standard-essential patents (“SEPs,” which generally speaking are technically essential and must be licensed in order to implement the standard). This is particularly […]

REPs Not SEPs: A Reasonable and Non-Discriminatory Approach to Licensing Commitments

John Harkrider, Oct 15, 2013 A lot of ink has been spilled on the subject of RAND commitments in recent years. Lawyers and judges have offered opinions on the proper methodology for calculating RAND royalties, regulators have sought to clarify the circumstances under which pursuing injunctive relief comports with a RAND commitment and competition law, […]

Turning the Page: The Next Chapter of Disputes Involving Standard-Essential Patents

Jay Jurata, David Smith, Oct 15, 2013 A technology company is on the verge of introducing a cutting-edge device that builds on a widely adopted industry standard. To do so, it must use patented technology that is technically essential to the standard. The patent owner, despite committing to license its standard-essential patents on fair, reasonable, […]

The Emperor’s Clothes Laid Bare: Commitments Creating the Appearance of Law, While Denying Access to Law

Oct 15, 2013 This article examines how the Article 9 commitments procedure under EC Regulation 1/2003 is increasingly being used to create policy under the guise of law and, in practice, to prevent courts from effectively providing review of, and guidance on, new areas of law. This problem is particularly acute in fast-moving high technology […]

Standard Setting: Should There Be a Level Playing Field for All FRAND Commitments?

Nadia Soboleva, Lawrence Wu, Oct 15, 2013 In the past few years, issues related to fair, reasonable, and non-discriminatory licensing rates for patents have garnered considerable attention. The issues most often come up in the context of standard-essential patents. However, some FRAND commitments have been undertaken for patents that have not been formally declared as standard […]