Part V Patent Hold-Up and Misuse, 9 Manipulation of the Standard-Setting Process

Subject(s):

European Union — Copyright — Licensing — Rights — Technology transfer agreements — United States

This chapter focuses on issues unique to the use of patents in the standard-setting process. In particular, some patentees have convinced standard setting organizations (SSOs) to adopt their proprietary technologies through false promises to license on fair, reasonable, and nondiscriminatory (FRAND) terms or by concealing their patent holdings. Competition issues may arise if owners of standard-essential patents (SEPs) either renege on their FRAND-licensing promises or assert their undisclosed patents against those implementing the standards. The chapter is organized as follows. Section II explores the smartphone wars that have brought many SEP-antitrust issues to the fore. Section III addresses three questions. First, can a patentee violate antitrust law by concealing a SEP and later seeking non-FRAND licensing terms? Second, may the owner of a FRAND-encumbered SEP demand an injunction? Third, how do courts define FRAND royalty terms? Section IV discusses antitrust limits on SEP assertion in the EU.