Over the past decade there has been an increasing number of disputes concerning the enforcement and licensing of patents covering technical standards. These disputes have taken on a global character and often involve litigation in North America, Europe and Asia. And while many of the parties are the same in actions around the world, courts and governmental agencies in different jurisdictions have begun to develop distinctive approaches to some of these issues. Thus, while areas of convergence exist, national laws differ on important issues including the availability of injunctive relief for FRAND-encumbered SEPs, the appropriate method for calculating FRAND royalties, the competition implications of violating a FRAND commitment, and the contours of the FRAND non-discrimination obligation. Thus, at least until greater international harmonization is achieved, firms doing business globally must remain particularly attuned to the evolving legal landscape in this area. This paper presents a brief overview of recent disputes that have arisen around the world with respect to the acquisition, enforcement and licensing of patents that are essential to technical interoperability standards.
Keio University Journal of Law, Politics and Sociology (Mar. 2018)