The Comparative Law and Economics of Standard Essential Patents and FRAND Royalties
Thomas F. Cotter
Among the most important questions in contemporary patent and competition law is what consequences should follow when the owner of a standard essential patent (SEP) that is subject to a FRAND commitment threatens to seek injunctive relief for the alleged infringement of the SEP. One possibility is that the accused infringer may counterclaim for breach of contract, in which case a court may have to determine whether the FRAND commitment creates a binding contract and, if so, whether it has been breached. Another is that a court may have to determine whether the patentee is entitled to an injunction or to damages only — and if the latter, how those damages should be calculated. A third is that the patentee’s conduct may amount to an act of monopolization or abuse of dominant position. This presentation will provide an overview of how different jurisdictions have addressed these issues to date and may address them in the future, and of the advantages and disadvantages of different approaches.