Globalisation and FRAND - IP & Competition Law Perspective

Abstract

The paper addresses the status of regulation of Standard Essential Patents (SEPs) in the era og globalisation and the diversity of ways in which FRAND (Fair, Reasonable and Non-Discriminatory) principles are being applied, the world over. SEPs represent the core innovation in an industry and protect innovation that has taken extraordinary effort to develop. Smart phones, tablets, connected cars, smart home applications, smart retail, gaming technologies and connected healthcare are some of the examples entailing use of SEPs. Reaching consensus regarding application of FRAND terms at the global level, is a utopian view of scholars and practitioners alike. However, the manner in which FRAND terms are being applied in the US and within the EU are different. Therefore, the task of arriving at a consensus is not straightforward. The paper, at first, presents the different views on application of FRAND terms. Thereafter, in the light of the recent case law – analyses the way in which FRAND terms are interpreted in different jurisdictions, specifically within the EU and the United States. In conclusion, the IP and competition law perspective is offered, as areas that potentially house some provisions that might assist in removing hurdles that stand in the way of achieving a common understanding.

Keywords: Standard essential patents, FRAND, Licensing terms, Patents, Standard Setting Organizations

JEL Classification: K11, K21, K40, L40