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Full-Text Articles in Law
The Effect Of Frand Commitments On Patent Remedies, Jorge L. Contreras, Thomas F. Cotter, Sang Jo Jong, Brian J. Love, Nicolas Petit, Peter George Picht, Norman Siebrasse, Rafał Sikorski, Masabumi Suzuki, Jacques De Werra
The Effect Of Frand Commitments On Patent Remedies, Jorge L. Contreras, Thomas F. Cotter, Sang Jo Jong, Brian J. Love, Nicolas Petit, Peter George Picht, Norman Siebrasse, Rafał Sikorski, Masabumi Suzuki, Jacques De Werra
Utah Law Faculty Scholarship
This chapter addresses a special category of cases in which an asserted patent is, or has been declared to be, essential to the implementation of a collaboratively-developed voluntary consensus standard, and the holder of that patent has agreed to license it to implementers of the standard on terms that are fair, reasonable and non-discriminatory (FRAND). In this chapter, we explore how the existence of such a FRAND commitment may affect a patent holder’s entitlement to monetary damages and injunctive relief. In addition to issues of patent law, remedies law and contract law, we consider the effect of competition law on …
Global Rate Setting: A Solution For Standard-Essential Patents?, Jorge L. Contreras
Global Rate Setting: A Solution For Standard-Essential Patents?, Jorge L. Contreras
Utah Law Faculty Scholarship
The commitment to license patents that are essential to technical interoperability standards on terms that are fair, reasonable and non-discriminatory (FRAND) is a fundamental mechanism that enables standards to be developed collaboratively by groups of competitors. Yet disagreements over FRAND royalty rates continue to bedevil participants in global technology markets. Allegations of opportunistic hold-up and hold-out continue to arise, spurring competition authorities to investigate and intervene in private standard-setting. And litigation regarding compliance with FRAND commitments has led an increasing number of courts around the world to adjudicate FRAND royalty rates, often on a global basis, but using very different …
Taking It To The Limit: Shifting U.S. Antitrust Policy Toward Standards Development, Jorge L. Contreras
Taking It To The Limit: Shifting U.S. Antitrust Policy Toward Standards Development, Jorge L. Contreras
Utah Law Faculty Scholarship
In November 2017, U.S. Assistant Attorney General Makan Delrahim, chief of the Department of Justice (DOJ) Antitrust Division, gave a speech at University of Southern California provocatively entitled “Take it to the Limit: Respecting Innovation Incentives in the Application of Antitrust Law”. In this speech, Mr. Delrahim announced a new DOJ policy approach to the antitrust analysis of collaborative standard setting and standards-development organizations (SDOs) -- the trade associations and other groups in which industry participants cooperate to develop interoperability standards such as Wi-Fi, Bluetooth, 4G and 5G, USB and the like. He explained that the DOJ had “strayed too …
Much Ado About Holdup, Jorge L. Contreras
Much Ado About Holdup, Jorge L. Contreras
Utah Law Faculty Scholarship
The policy debate surrounding patent hold-up in markets for standardized products is now well into its second decade with no end in sight. Fundamental questions including the definition of hold-up, whether it exists in the marketplace, and what impact it has on innovation, continue to bedevil scholars, policy makers and industry. Yet it is not clear that this debate needs to continue. Patent hold-up is a pattern of market behavior, not a legally-cognizable wrong. Whether it is commonplace or rare is largely irrelevant to liability in any given case. To the extent that hold-up behavior constitutes an abuse of market …
Non-Discrimination And Frand Commitments, Jorge L. Contreras
Non-Discrimination And Frand Commitments, Jorge L. Contreras
Utah Law Faculty Scholarship
A pledge to license standard essential patents (SEPs) on a non- discriminatory basis is a common element of SDO IPR Policies, part of the larger commitment to license on Fair, Reasonable, and Non- Discriminatory (FRAND) terms. In this chapter we consider what non-discrimination pledges imply for SDO member conduct. We review the basic variants of such pledges, how they may be informed by broader legal and economic defi nitions of discrimination, and recent cases and agency guidance interpreting such commitments. We conclude with open questions regarding the legal implications of non-discriminatory licensing pledges.
The Global Standards Wars: Patent And Competition Disputes In North America, Europe And Asia, Jorge L. Contreras
The Global Standards Wars: Patent And Competition Disputes In North America, Europe And Asia, Jorge L. Contreras
Utah Law Faculty Scholarship
Over the past decade there has been an increasing number of disputes concerning the enforcement and licensing of patents covering technical standards. These disputes have taken on a global character and often involve litigation in North America, Europe and Asia. And while many of the parties are the same in actions around the world, courts and governmental agencies in different jurisdictions have begun to develop distinctive approaches to some of these issues. Thus, while areas of convergence exist, national laws differ on important issues including the availability of injunctive relief for FRAND-encumbered SEPs, the appropriate method for calculating FRAND royalties, …