ARTICLE : PATENTS - STANDARDS - OPEN STANDARDIZATION - PATENT EXCLUSIVITY - FRAND TERMS

FRAND Access to open standards and the patent exclusivity: Restating the principles

When technical standards are to be defined pursuant to the claims of a patent and, therefore, the use of the standard will necessarily infringe that standard-essential patent (SEP), the proprietor may commit to granting all users a license at fair, reasonable and non-discriminatory (FRAND) conditions as a way to promote acceptance of the standard by the market. However, the relationship between FRAND licensing commitment and a patentee’s right to seek and obtain injunctive relief from patent infringement by standard implementers not (yet) having entered into a license agreement remains controversial. In Huawei Technologies v. ZTE, the Court of Justice of the EU has shown a way to overcome the tension between the protection of patents by prohibitory orders and open access to innovative standards that has its origin in general principles of commercial law rather than in competition law. In view of this new approach and of the jurisprudential misunderstandings it entailed, the paper restates the legal principles that, as a matter of public policy, govern the interaction of patent protection and open standardization in the EU.

1. When standards are to be defined pursuant to a patented technical teaching and their use, therefore, will result in infringing the patent (so-called “standard-essential patent,” SEP [1]), the patentee may commit to granting all users of the standard a license on fair, reasonable and non-discriminatory (FRAND) [2] terms as a way of allowing general access to the standard despite his right of exclusivity over the standard-essential invention. Typically, such commitments are made within and often even required as a matter of “innovative, open standardization” by collective standard-setting organizations (SSOs). Such FRAND commitments are still surrounded by uncertainty and controversies. These concern the legal nature and scope of the commitment as such, its relevance for the legality of

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.

 

PDF Version

Author

  • Ludwig Maximilians University

Quotation

Hanns Ullrich, FRAND Access to open standards and the patent exclusivity: Restating the principles, May 2017, Concurrences N° 2-2017, Art. N° 83890, www.concurrences.com

Visites 928

All reviews