There are many reasons why FRAND is a complex topic. The first four challenges offer low-hanging fruit that could clarify FRAND issues by paying less attention to systemic holdup, jettisoning unsupported positions, not letting industry funding replace reasoned debate, and being aware of the role played by patent trolls. The remaining four challenges pose levels of difficulty that increase from modest (clear SDO rules or facts) to medium (SDO history, industry characteristics, unclear licensee willingness) to significant (determining “fair and reasonable” and “nondiscriminatory”) to extraordinary (global litigation). While not all of these challenges can be addressed with simple solutions, an awareness of the types of challenges presented by FRAND could prove helpful in the years ahead.
Michael A. Carrier, Why Is FRAND Hard?, 2023 ULR 931 (2023). DOI: https://doi.org/10.26054/0d-20kh-17ka