FRAND Developments, Part 2

Here are some more recent papers on FRAND:

1.  By way of the Antitrust & Competition Policy Blog, I learned last week of a 298-page report published in May 2014 by George Addy and Erika Douglas of the Canadian firm Davies Ward Phillips & Vineberg titled Trolls, Hopping, Ambush and Hold-Up:  Emerging International Approaches to the Intersection of Competition and Patent Law Regimes.  Here is the abstract, from the firm's website:

Worldwide, regulators and courts are increasingly engaged in the complex legal and policy issues at the intersection of competition and patent regimes. Trolls, Hopping, Ambush and Hold-up: Emerging International Approaches to the Intersection of Competition and Patent Law surveys the state of play in major jurisdictions on four rapidly evolving issues at the forefront of this global debate: reverse payment settlements, standard-setting/FRAND licensing commitments, patent assertion entities and product hopping. The report, commissioned by Industry Canada, provides an in-depth survey of legal and policy developments in Canada, the U.S., Europe, Australia and the U.K., and considers the potential implications for Canadian competition law and patent rights.

2.  The Antitrust & Competition Policy Blog also announced the publication of GCR's European Antitrust Review 2015.  At least a couple of the papers discuss FRAND/SEP issues among other matters, including this one by Elena Cortés, Adam Dawson & Catriona Hatton (IP and Antitrust); this one by Laurent Godfroid and Stéphane Hautbourg (Telecoms and Media); and this one by Nadine Herrmann (Germany:  IP and Antitrust).

3.  Joanna Tsai and Federal Trade Commissioner Joshua D. Wright have posted a paper on ssrn titled Standard Setting, Intellectual Property Rights, and the Role of Antitrust in Regulating Incomplete Contracts.  Here is the paper, and here is the abstract:

A large and growing number of regulators and academics, while recognizing the benefits of standardization, view skeptically the role standard setting organizations (SSOs) play in facilitating standardization and commercialization of intellectual property rights (IPRs). Competition agencies and commentators suggest specific changes to current SSO IPR policies to reduce incompleteness and favor an expanded role for antitrust law in deterring patent holdup. These criticisms and policy proposals are based upon the premise that the incompleteness of SSO contracts is inefficient and the result of market failure rather than an efficient outcome reflecting the costs and benefits of adding greater specificity to SSO contracts and emerging from a competitive contracting environment. We explore conceptually and empirically that presumption. We also document and analyze changes to eleven SSO IPR policies over time. We find that SSOs and their IPR policies appear to be responsive to changes in perceived patent holdup risks and other factors. We find the SSOs’ responses to these changes are varied across SSOs, and that contractual incompleteness and ambiguity for certain terms persist both across SSOs and over time, despite many revisions and improvements to IPR policies. We interpret this evidence as consistent with a competitive contracting process. We conclude by exploring the implications of these findings for identifying the appropriate role of antitrust law in governing ex post opportunism in the SSO setting.

4.  Madhur Singh published an article titled Indian Draft Policy to Set Time Limit on Essential Telecom IP Licensing Talks in the August 18 Bloomberg BNA World Intellectual Property Report (link here, behind a paywall).  According to the article, on July 17 the Telecommunications Standards Development Society, India (TSDSI), "a public-private organization that establishes and implements standards for the telcommunications industry in India," discussed a draft policy under which negotiations relating to the FRAND licensing of SEPs should take place within a "'reasonable' time limit" of 6-12 months, during which period "none of the parties involved is to resort to any legal recourse such as injunctions."  The draft  policy is not yet available to the public.

5.  Tyrone Berger has posted the following abstract on ssrn of a paper to be published in the Australian Intellectual Property Journal: 

This paper investigates some key problems surrounding patented standards and technological standardisation. It surveys two emerging conflicts, namely patent hold-up and patent ambush, in light of potential anticompetitive conduct by industry participants in the development of a technical standard. A paired relationship is fostered when proprietary rights, such as patents, are adopted in a standard. For example, when new knowledge is generated through research and development, it is captured and widely distributed to the market, via standards, ensuring equal access to the new technology. However, a key concern is that this consensus-based practice may provide companies with a degree of market power, which if left unchecked, can result in higher licensing fees and a loss in consumer welfare. At the same time, Standard-Setting Organisations seek to reconcile their policy objectives of knowledge diffusion and technical performance, with the risks of patent hold-up and excessive royalties. Given the imprecise nature of these choices, this author argues that it is more accurate to characterise this situation as a ‘search for co-existence.’