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article
Jakobs_2023_3
Preserving the Royalty-Free Standards Ecosystem
European Intellectual Property Review
2023
7
45
7
371-375
It has long been recognized in Europe and elsewhere that standards-development organizations (SDOs) may adopt policies that require their participants to license patents essential to the SDO’s standards (standards-essential patents or SEPs) to manufacturers of standardized products (“implementers”) on a royalty-free (RF) basis. This requirement contrasts with SDO policies that permit SEP holders to charge implementers monetary patent royalties, sometimes on terms that are specified as “fair, reasonable and nondiscriminatory” (FRAND). As demonstrated by two decades of intensive litigation around the world, FRAND royalties have given rise to intractable disputes regarding the manner in which such royalties should be calculated and adjudicated. In contrast, standards distributed on an RF basis are comparatively free from litigation and the attendant transaction costs. Accordingly, numerous SDOs around the world have adopted RF licensing policies and many widely adopted standards, including Bluetooth, USB, IPv6, HTTP, HTML and XML, are distributed on an RF basis. This note briefly discusses the commercial considerations surrounding RF standards, the relationship between RF standards and open source software (OSS) and the SDO policy mechanisms – including “universal reciprocity” -- that enable RF licensing to succeed in the marketplace.
0142-0461
10.2139/ssrn.4235647
1
JorgeContreras
RudiBekkers
BradBiddle
EnricoBonadio
Michael A.Carrier
BernardChao
CharlesDuan
RichardGilbert
JoachimHenkel
ErikHovenkamp
MartinHusovec
KaiJakobs
Dong-hyuKim
Mark A.Lemley
Brian J.Love
LukeMcDonagh
Fiona M.Scott Morton
JasonSchultz
TimothySimcoe
Jennifer M.Urban
Joy YXiang