Published: 10/1/14This article analyzes FRAND determinations in adjudicated cases and addresses the question of how to interpret FRAND in light of ambiguities in the meaning of reasonableness. The article argues that “[a]lthough ambiguous, the RAND commitment can impose real constraints, because, like any standard of reasonableness, it draws meaning from [...]

Published: 10/1/13This article, which is based on an empirical study of the success record of SEPs asserted in litigation by Interdigital, Motorola, and Samsung, concludes that most asserted SEPs have been found to be invalid or not infringed.  The article found that out of 58 SEPs asserted in litigation globally [...]

Published: 9/1/14Read More

Published: 8/3/13The letter from USTR disapproved of, and thus overturned, the ITC’s decision in a section 337 case to issue (i) an exclusion order that would have prohibited the importation of Apple smartphones and tablets that allegedly infringed a FRAND-encumbered SEP patent owned by Samsung; and (ii) a cease and [...]

Published: 7/11/12In this testimony, the U.S. Justice Department’s Antitrust Division explains the potential for standardization to enable SEP holders to engage “in one form of what is known as patent hold-up, such as by excluding a competitor from a market or obtaining an unjustifiably higher price for its invention than [...]

Published: 6/28/07Broadcom brought an antitrust action in which it alleged that Qualcomm had persuaded the European Telecommunications Standards Institute (“ETSI”) to incorporate Qualcomm’s patented technology by committing to license the technology on FRAND terms but later reneged on its commitment. A district court dismissed Broadcom’s complaint, and the Third Circuit [...]

Published: 7/1/12This article presents a unanimous view from scholars of economics, antitrust and IP—including former lawyers and chief economists at the U.S. Department of Justice, a former executive official at the Patent and Trademark Office, a former counsel at the International Trade Commission, and a former member of the President’s [...]

Published: 6/6/12In its statement, the U.S. Federal Trade Commission urged the ITC to consider that “a royalty negotiation that occurs under threat of an exclusion order may be weighted heavily in favor of the patentee in a way that is in tension with the RAND commitment.  High switching costs combined [...]

Published: 6/1/13This article discusses the problem of hold-up that is not the consequence of deception of a standard setting organization by a SEP holder, and whether this type of hold-up is reachable by Section 2 of the Sherman Act.  The article shows that the reach of Section 2 is not [...]

Published: 4/1/13This article acknowledges that hold-up can lead to inefficient standard setting and defines FRAND through the application of economic principles.  It explains that “[t]he reduction in alternatives that results from the adoption of the standard can raise the maximum royalty rate that the patent holder demands (ex post) above [...]