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Getting The Deal Through

Global overview

Peter J Levitas and Matthew A Tabas

Arnold & Porter Kaye Scholer LLP

Tuesday 11 December 2018

Standard essential patents and FRAND licensing

Once again this year, much of the activity at the intersection of antitrust and intellectual property law has revolved around the issue of industry standards. Competition authorities recognise that such standards frequently create efficiencies, but remain concerned about potential risks. There is particular focus on standard essential patents (SEPs) and ‘patent hold-up’ (ie, the prospect of an SEP-holder successfully demanding higher royalty rates or other more favourable terms after a standard is adopted than it could have demanded credibly before a standard is adopted). Standard-setting organisations (SSOs) routinely attempt to mitigate such risks by requiring that SEP-holders agree to license those patents on fair, reasonable and non-discriminatory (FRAND) terms. Failure to meet that obligation has sometimes been deemed a violation of antitrust laws. How to define FRAND and how to assess whether particular licensing terms comply with a FRAND obligation remain a focus of competition authorities and courts around the world.

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