Author ORCID Identifier
FRAND commitments are creations of written policy documents and contract law. Accordingly, the existence of a “License to All” obligation under a FRAND commitment must arise from the relevant policy language. Numerous SDO policies expressly impose “License to All” requirements. Some SDO policies are ambiguous with respect to this requirement and such ambiguities should be resolved based on an examination of extrinsic evidence including the intentions of policy drafters, the shared understandings of SDO participants, and the historical precedents for such policies. In many cases, an examination of these factors should lead to the conclusion that “License to All” is, indeed, required by the relevant policies. The only sure way to prevent the imposition of “License to All” obligations on SDO participants is to draft clear policy language expressly disavowing such obligations and permitting level discrimination in SEP licensing.
Intellectual Asset Management (IAM), Oct. 10, 2020