Eliana Garces, Dec 20, 2013
The recent antitrust interventions against patent holders issuing injunctions to assert standard essential patents have caused a stir and a debate on the role of antitrust enforcement in licensing negotiations. This piece argues that the way antitrust intervention is being framed allows regulators to restrict the behavior of the patent holder staying away from the issue of FRAND determination. Yet, uncertainty about the meaning of reasonableness and about what is and is not allowed under FRAND commitments lies behind most litigation activity surrounding SEPs. Without more clarity on what can or cannot be accepted under FRAND it is unlikely that substantial progress will be achieved in reducing costly litigation. Antitrust enforcement is ill placed to do the job. In the face of uncertainty about Courts’ ability to develop a consistent line across the globe, standard setting organizations have a role to play in shedding some light on fair licensing of SEPs.
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