The problem of technical standards essential patents and the effectiveness of FRAND license commitments

Fernando Carbajo Cascón

Keywords

Standard Essential Patents (SEP); Antitrust Law; Intellectual Property; Licenses fair; reasonable and non discriminatory (FRAND); Patent Ambush; Patent Hold-Up.

Abstract

Technological standards can provide substantial advantages for industrial and economic development, while significant risks to competition. Especially when some holders of essential patents leverage to deploy oriented to demand higher royalties, under the threat of not granting license and exercise injunctions for patents infringements. FRAND policies developed by the standards organizations are not effective in themselves to overcome this situation, being necessary competition law to prevent and punish improper behaviour of the companies involved in the standard that putting at risk competition in the market. However, the final solution of the problem will depend on an adequate definition of the procedure to negotiate and the precise content of licenses on fair, reasonable and unfair conditions (FRAND).