Guest Post by Thomas F. Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law School
As readers of this blog are aware, organizations such as the European Telecommunications Standards Institute (ETSI), IEEE, and others promulgate standards that enable products such as smartphones and other complex technological devices to interoperate. These standard-setting organizations (SSOs) encourage their members to commit to licensing patents that may be essential to the practice of the relevant standards on fair, reasonable, and nondiscriminatory (FRAND) terms. Because SSOs do not define the meaning of FRAND, however, when the owners of these standard-essential patents (SEPs) and the companies that implement them fail to reach terms, litigation is often the result. And because patents are territorial rights, FRAND litigation often spans the globe—though because of its importance to the European market, Germany has been home to many of the most important FRAND cases over the past decade. The German FRAND case law, in turn, is based in part on the German courts’ interpretation of European Union competition (antitrust) law, and differs in important respects from the approaches taken in FRAND cases in other leading jurisdictions, including the United Kingdom, the United States, and China. (more…)
