Moving Away from High-Level Theories: A Market-Driven Analysis of FRAND

AuthorDamien Geradin
DOI10.1177/0003603X1405900205
Published date01 June 2014
Date01 June 2014
Subject MatterArticle
THE ANTITRUST BUL L E T I N :Vol. 59, N o. 2/Summ er 2014 :327
Moving away from
high-level theories: A market-
driven analysis of FRAND
BY DAMIEN GE RADIN *
The mobile communication sector is often used as an example to sup-
port claims that the FRAND regime is broken because of the risk of
hold-up and royalty stacking. Based on an analysis of market-related
data, this article argues that the allegations that hold-up and royalty
stacking have been pervasive in the mobile communication sector are
implausible. The analyzed data reveal no adverse consequences of
hold-up and royalty stacking in terms of harm to the standard-setting
process, reductions in the rate of innovation, or levels of R&D invest-
ment: It is alleged that those seeking to justify the significant reforms
to the FRAND regime on the basis of hold-up and royalty stacking
have not met the burden of proof that these reforms are necessary or
even desirable.
KEY WO RDS:Hold-up, royalty stacking, FRAND, standard-essential
patents, patent reforms, mobile communication
© 2014by Federal Legal Publications, Inc.
* Professor of Law, George Mason University School of Law and
Professor of Competition Law & Economics, Tilburg University.
AUTHOR’S NOTE: I represent ed Qualcomm in the inves tigation in itiated by th e
European Commission in 2005 for alleged abusive licensing practices. This
investigation was terminated in 2009 without a finding of infringement. I thank Kirti
Gupta and Anne Layne-Farrar for their useful comments.
I. INTRODUCTION
Standard-setting activities, which aim to achieve device interoperabil-
ity and product compatibility,1play a fundamental role in fostering
innovation and competition in a large variety of markets. A standard
can be defined as a setof technical specifications that seeks to providea
common design fora product or process.2The welfare benefits deriving
from the existence of standards are obvious. By allowing complemen-
tary or component products from different manufacturers to be com-
bined or used tog ether, sta ndards s timul ate competiti on betw een
compliant products, in turn driving innovation and consumer choice.
Standards are usually created by voluntary organizations (generally
referred to as standard-setting organizations, or SSOs) composed of par-
ticipants (such as companies and research institutions) from a given
industry (such as electronic components and communications).3SSO
membersmeet to discuss,analyze, refine, and ultimatelyadopt mutually
acceptable standards, which ensure that competing and complementary
products and components are compatible and can interoperate.4SSOs
have thusgained particular importance intechnology-driven sectors.
328 :THE ANT I T R U S T BULLETIN:Vol. 59, No. 2/Summer 2014
1According to the Institute of Electrical and Electronics Engineers
(IEEE), technology standards “form the fundamental building blocks for
product development by establishing consistent protocols that can be univer-
sally understood and adopted. This helps fuel compatibility and interoper-
ability an d simplifi es product d evelopme nt, and spee ds time-to -market.
IEEE Stan dard s Ass’ n, Wh at Are S tand ards ?, ht tp:/ /sta ndard s.ie ee.o rg
/develop/overview.html (last visited Apr. 30, 2014).
2See HERB ERT HOVENKAMP, MARK D. JA NIS & MA RK LEMLE Y, IP AND
ANTITRUST: ANANA LYSIS OF ANTITR UST PRINCIPLES APPLIED TO IN TELLECTU AL
PROPERTY LAW § 35.1 (2003–04 supp.).
3For instance, the European Telecommunications Standards Institute
(ETSI), headquartered in Sophia Antipolis, France, was formed in 1988 by the
European Conference of Postal and TelecommunicationsAdministrations and
is officia lly recogn ized by the E uropean Com mission a s the organi zation
responsible for standardization of information and communication technolo-
gies within Europe. See generally, Mark Lemley, Intellectual Property Rights and
Standard-Setting Organizations, 90 CALIF. L. REV. 1889 (2002).
4SSOs are not the only source of standards. Standards may also be
created by regulation. In some cases, a product or process developed by a
firm may also become so popular that it becomes a de facto standard.
Standards may be encumbered by patents when the technologies
they implement are proprietary. This is often the case in the informa-
tion technology industry, where a given standard may rely on a large
number of patented technologies (referred to as standard-essential
patents or SEPs) held by a variety of companies. Patents are exclusive
rights which confer upon their owners two basic prerogatives: (1) the
right to prevent any third party from applying or using the subject
matter of the patent; and (2) the right to set the conditions of a license
in consideration for use of the patent as a reward for the innovative
contribution made. This means that manufacturers cannot lawfully
implement a standard unless they obtain licenses from all the SEP
holders.5These patent holders have a right to obtain compensation,
which can take the form of an upfront cash payment, the payment of
running royalties, a cross-license, or other forms of consideration.
Most formal SSOs have intellectual property right (IPR) policies,
which generally encourage patent owners involved in standardiza-
tion to disclose upfront, prior to the standard’s adoption, any patents
that they consider essential.6Once disclosure is made, or contempora-
neously with disclosure, patent holders are typically asked to provide
an assurance or commitment that, should their patents be essential for
a standard, they will license them on fair, reasonable and nondiscrim-
inatory (FRAND) terms to members of the SSO and outsiders.7The
MA R K E T - D RIVEN AN A L Y S I S :329
5From the perspective of a manufacturing company seeking to imple-
ment and commercialize a standard, the patents are strict complements: The
company needs to obtain licenses for all SEPs in order to be compliant with
the standard and, equally important, to avoid the risk of being sued for
patent infringement.
6Early disclosure of patents “is likely to enhance the efficiency of the
process used to finalize and approve standards” and “permits notice of the
patent to the standards developer . . . in a timely manner, provides partici-
pants the greatest opportunity to evaluate the propriety of standardizing the
patented technology, and allows patent holders and prospective licensees
ample time to negotiate the terms and conditions of licences . . . .” Am. Nat’l
Standards Inst., Guidelines for Implementation of the ANSI Patent Policy 3,
availa ble at http://www.nfpa.org/~/media/Files/Codes%20and%20stan-
dards/Regulations%20directory%20and%20forms/ANSI_NFPA_Patent_Pol-
icy.pdf(last visited, May 19, 2014).
7European Telecomm. Standards Inst., IPR Policy, art. 6.1, available at
http://www.etsi.org/images/files/IPR/etsi-ipr-policy.pdf (last visited May

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