Author ORCID Identifier
An increasing number of cases around the world turn on whether a manufacturer of a product – e.g., a smartphone, a tablet or a car -- (an “implementer”) is willing to pay a “fair, reasonable and nondiscriminatory” (FRAND) royalty for patents that are essential to an industry standard embodied in that product (standards-essential patents or SEPs). This determination is important both to the analysis of the appropriateness of an injunction under the 4-factor eBay test in the U.S., and for assessing the appropriateness of injunctive relief under the Huawei v. ZTE competition law case in the EU. This essay explores the significance of “willingness” in the FRAND context primarily from a U.S. perspective, and offers a new legal framework for evaluating an implementer’s “willingness” to accept a license on FRAND terms. In doing so, it identifies conduct that typically indicate willingness or unwillingness, as well as an intermediate range of conduct that should be viewed as indeterminate -- subject to classification only after additional conduct has been observed. It is hoped that this framework will assist courts and parties in systematically and consistently analyzing implementer behavior when disputes over FRAND terms arise.