A few thoughts on the non-discriminatory prong of FRAND

Guest post by Carlos Muñoz Ferrandis*

While the Fair and Reasonable prongs of FRAND have been largely discussed, the prong now deserving an exhaustive analysis in the light of latest case law in Germany, UK and US is the Non-Discrimination (ND) prong of FRAND. At the end of the day, the interpretation given to the Non-Discrimination rule will have an impact on the incentives to innovate of the firms participating in the standard setting process and seeking a return on investment via SEP licensing. Hence, a “miss-shape” of this rule has the potential to harm the standardization process in itself.

So, how does one assess whether an offer complies with the commitment to license at non-discriminatory terms?

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