Igor Nikolic

Licensing Standard Essential Patents (eBook, PDF)

FRAND and the Internet of Things

• Format: PDF

Produktbeschreibung

What is the licensing framework of standard essential patents (SEPs) for connectivity standards such as 5G and Wi-Fi? How will the framework change with the Internet of Things (IoT)? This book provides comprehensive answers to these questions.

For over two decades, connectivity standards have been the subject of litigation and controversy around the globe. Now, with the introduction of 5G and the emergence of the world of connected objects, or the IoT, the licensing framework for SEPs is becoming even more contentious. In order to bring clarity to the debate, this book analyses and explains key components of a fair, reasonable and non-discriminatory (FRAND) licence for SEPs; clarifies the economic, policy and market background of SEP disputes; examines the interrelated application of contract, patent and competition laws; and describes the approaches by courts and regulators in the EU, US and the UK. Importantly, the book also assesses how the experience from the smartphone and ICT industries can be applied in a new environment of the IoT, and considers what needs to be changed in the future SEP licensing landscape.

The book provides a holistic coverage of SEP licensing issues in an attempt to reduce uncertainty within this highly complex and technical area, and will be useful to practitioners, policy makers, SMEs and large technology companies in the IoT, as well as academics interested in the field.

Produktdetails

• Verlag: Bloomsbury UK eBooks
• Seitenzahl: 368
• Erscheinungstermin: 18. November 2021
• Englisch
• ISBN-13: 9781509947577
• Artikelnr.: 62836683

Autorenporträt

Igor Nikolic is Robert Schuman Fellow at the European University Institute, Italy, and Senior Fellow at the UCL Centre for Law, Economics and Society, UK.

Inhaltsangabe

I. Setting the Context II. Structure PART I THE STANDARD-DEVELOPMENT
ENVIRONMENT 1. Standards, Standard-Development Organisations and Standard
Essential Patents I. Standards A. Technical Interoperability Standards B.
Classification of Standards i. Standards Based on their Source a. De Facto
Standards b. Collaborative Standards c. Governmental Standards ii. Open and
Closed Standards II. Standard Development Organisations A. Types of SDOs B.
Membership C. How SDOs Develop Standards III. Standard Essential Patents A.
SEPs in IPR Policies of SDOs i. Disclosure Rules ii. Licensing Rules B. The
Meaning of Essentiality C. The Problem of Over-Disclosure IV. Conclusion
2. The Dynamics of Standard Essential Patent Licensing: Patent Holdup,
Holdout and Royalty Stacking I. Industry Convergences and Changing Market
Dynamics II. Patent Holdup and Royalty Stacking A. Patent Holdup B. Royalty
Stacking C. The Influence of Patent Holdup and Royalty Stacking Theories
III. Criticism of Patent Holdup and Royalty Stacking Theories A. The Lack
of Empirical Evidence of Systematic Negative Effects B. The
Misunderstanding of the Standardisation Process and Legal Licensing
Framework IV. Patent Holdout V. Conclusion PART II THE MEANING AND CONTENT
OF A FRAND LICENCE 3. The Nature of a FRAND Commitment I. The Principles
and the Text of a FRAND Commitment II. The Enforceability of a FRAND
Commitment A. Contract Law i. Can SDO Non-Members Rely on a FRAND Contract?
ii. Is a FRAND Commitment Sufficiently Clear to be an Enforceable Contract
iii. Transferability of a FRAND Commitment iv. Not All Jurisdictions
Recognise Third-Party Beneficiary Rights v. SDOs Could Clarify the
Contractual Nature of a FRAND Commitment B. Competition Law i. EU
Competition Law and Breach of FRAND Commitments ii. US Antitrust Law and
Breach of FRAND Commitments iii. The Role of Competition Law in the SEP
Context C. Alternative Theories on the Enforceability of FRAND Commitments
III. Conclusion 4. FRAND Royalty I. The Principles of FRAND Royalty A. The
Value of the Technology Itself (the Ex Ante Incremental Value Approach) i.
Reception in Practice ii. Criticism of the Ex Ante Incremental Value
Approach a. Misunderstanding the Standard-Development Process b.
Depreciating the Value of SEPs c. Not Used in Real-World Commercial
Transactions d. Inapplicability in Practice B. Sharing the Value of
Standardisation II. Calculating FRAND Royalties in Practice A. Comparable
Licences i. Application in Practice B. Top-Down Approach i. Application in
Practice C. Other Approaches III. Conclusion 5. The Non-Discrimination
Requirement of a FRAND Commitment I. Positive and Negative Aspects of Price
Discrimination in Standard Essential Patent Licensing II. The
Non-Discrimination Requirement in the Text of a FRAND Commitment III. No
Requirement to Apply Uniform Terms to All Licensees IV. Interpretations of
the Non-Discrimination Requirement of a FRAND Commitment A. Prohibition of
Discrimination between Different Levels of the Production Chain B.
Prohibiting Price Discrimination of Vertically Integrated SEP Holders
against Downstream Competitors C. Prohibiting Discrimination against
Similarly Situated Licensees i. Which Licensees are Similarly Situated? ii.
When is Dissimilar Treatment Discriminatory? iii. What are the Remedies for
Discrimination? V. The Application of the Non-Discrimination Requirement of
a FRAND Commitment VI. Confidentiality Agreements and Disclosure of
Licences VII. Conclusion 6. FRAND Royalty Base I. Introduction: The
End-Product or Component? II. The Appropriate FRAND Royalty Base III. The
Legal Requirement to Use a Particular Royalty Base A. Origins and Evolution
of the SSPPU Theory i. US Patent Damages System and the Emergence of the
SSPPU Theory ii. Reception and Expansion of the SSPPU Doctrine by the
Federal Circuit iii. Clarification and Backtracking of the SSPPU Doctrine
by the Federal Circuit iv. Jury Bias as a Reason for the Introduction of
the SSPPU B. Conclusion IV. The Royalty Base in Standard Essential Patent
Litigation V. Conclusion 7. FRAND and Value Chain Licensing I. The Value
Chain Licensing Debate II. Patent Law and Value Chain Licensing III. FRAND
Commitments and Value Chain Licensing IV. Competition Law and Value Chain
Licensing A. Refusal to License and EU Competition Law B. Article 101 TFEU
and the Horizontal Cooperation Guidelines C. Refusal to License and US
Antitrust Law V. Policy Outlook for the Internet of Things VI. Conclusion
8. Remedies I. Injunctions A. Principles of Equity (US Courts) B. Public
Policy (International Trade Commission) C. Unfair Competition (Federal
Trade Commission) D. Competition Law (EU) i. The Interpretation of Huawei v
ZTE by National Courts E. Conclusion II. Global or Territorial Scope of a
FRAND Licence? III. Antisuit Injunctions IV. Past Damages V. Procedural
Remedies to Facilitate Patent Licensing A. A FRAND Trial First B. Interim
Payments VI. Conclusion PART III STANDARD ESSENTIAL PATENT LICENSING IN THE
INTERNET OF THINGS 9. Standard Essential Patent Licensing in the Internet
of Things I. Challenges of FRAND Licensing in the Internet of Things II.
Current Proposals for Improving the Standard Essential Patent Licensing
Framework A. Transparency of the SEP Landscape B. Unilateral Ex Ante
Disclosure of Maximum Licensing Terms C. Collectively Setting an Aggregate
Royalty for a Standard D. Global Rate-Setting Tribunals III. Collective
Licensing Models for the Internet of Things A. Patent Pools for the IoT i.
Overcoming the Obstacles in Pool Formation a. Assembling a Critical Number
of Upstream Companies is Sufficient b. Pool Royalty to Induce Pool
Participation and Prevent Free Riding c. Division of Royalties d.
Essentiality Checks e. IoT Industry-Specific Licensing Terms f.
Transparency of Terms and Patents B. Implementers' Collective Licensing
Associations IV. Conclusion