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?

Continue reading “A few thoughts on the non-discriminatory prong of FRAND”

Unwired Planet vs Huawei: the Appeal

Guest post by Vicente Zafrilla Díaz-Marta*

Earlier this week the Court of Appeal of London (Civil Division) published its judgement on appeal against the decision of Justice Birss in the Unwired Planet vs. Huawei case.

A brief summary of the facts and the evolution of the case

Unwired Planet sued Huawei for the infringement of various essential patents (SEPs) needed to implement the 2G, 3G and 4G technologies on the defendant´s devices. These patents had mostly been acquired by Unwired Planet from Ericsson. Other defendants, such as Samsung or Google reached agreements with UP along the proceedings.

Although both parties agreed to sign a license agreement, there were discrepancies concerning its terms, and its conformity or not with FRAND conditions. Continue reading “Unwired Planet vs Huawei: the Appeal”

The European Commission provides guidance on SEP licensing but leaves open issues

On November 29, the European Commission published its long-awaited “Communication setting out the EU approach to standard-essential patents” (SEPs). The stakeholders were expecting from the Commission in-depth guidance on the definition of fair, reasonable and non-discriminatory (FRAND) terms in the context of SEP licensing. However, the Commission did not address all the open issues, leaving room for continued legal uncertainty on the exact meaning of FRAND. Continue reading “The European Commission provides guidance on SEP licensing but leaves open issues”