Why Can't We Be (F)rands?: The Effect of Reasonable and Non-Discriminatory Commitments on Standard-Essential Patent Licensing

Authors

Robert D. Keeler, Benjamin N. Cardozo School of Law

Abstract

This Note explores the effect of a patent holder's reasonable and non-discriminatory ("RAND") commitments to standard-setting organizations on their patent claims which are declared "standard-essential" by the standard-setting organization. It also analyzes the current standard-essential patent ("SEP") licensing system used by the majority of standard-setting organizations around the world and proposed modifications thereto.

This Note looks toward the current case of Microsoft v. Motorola Mobility, the recent Google Settlement with the Federal Trade Commission ("FTC"), and various calls for reform from other areas of the government. The Note concludes that it appears that we are moving toward a system in which SEP holders must now take their RAND commitments more seriously by making good faith attempts at negotiation before accepting an ongoing royalty rate for the use of their patents in lieu of exclusionary relief. Such a system will hopefully bolster technological innovation and provide the economic incentive for patent holders to include their patented inventions in standards.

Disciplines

Antitrust and Trade Regulation | Courts | Entertainment, Arts, and Sports Law | Intellectual Property Law | Law | Science and Technology Law

Recommended Citation

Robert D. Keeler, Why Can't We Be (F)rands?: The Effect of Reasonable and Non-Discriminatory Commitments on Standard-Essential Patent Licensing, 32 Cardozo Arts & Ent. L.J. 317 (2013).
Available at: https://larc.cardozo.yu.edu/cardozoaelj/vol32/iss1/10