Antitrust and Unfair Competition Law

Competition: Fall 2018, Vol 28, No. 1

ABOVE FRAND LICENSING OFFERS DO NOT SUPPORT A CALIFORNIA UCL ACTION IN TCL V ERICSSON

By Robert B. McNary1

Disputes involving standards essential patents arise when contributors of proprietary technology to industry standards and standards implementers wishing to make use of that proprietary technology fail to agree on fair, reasonable, and nondiscriminatory ("FRAND") licensing terms for proprietary technology that reads on the standard. Resolving these FRAND disputes in a fair and efficient manner is highly important for the continued expansion of global technology networks. The proper role of antitrust and competition laws in this process—if any—has been an ongoing topic of discussion.

In recent remarks regarding innovation policy, Assistant Attorney General for Antitrust Makan Delrahim stated his general preference for using contract law—not antitrust law—for disputes involving standard essential patent licensing commitments:

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