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The Meaning Of Frand, Part I: Royalties

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  • J. Gregory Sidak

Abstract

What does it mean for a patent holder to commit to a standard-setting organization (SSO) to license its standard-essential patents (SEPs) on fair, reasonable, and nondiscriminatory (FRAND) terms? When is a royalty FRAND? Drawing from both legal theory and economic theory, I propose an interpretation of FRAND that distinguishes and reconciles the conflicting definitions of FRAND and provides courts a practical approach to identifying FRAND royalties. A proper understanding of a FRAND royalty requires recognizing the combinatorial value of standard-essential patents. That recognition reveals the fallacy in attempting to apply the “ex ante incremental value” rule to the determination of a FRAND royalty. FRAND royalties divide the aggregate royalties generated by the standard among the holders of patents essential to the standard. Such a division should maximize the surplus resulting from the standard's creation. It must also satisfy an individual-rationality constraint for the patent holder and the licensee, thereby encouraging continued participation in the setting and implementation of open standards, as opposed to greater reliance on proprietary standards.

Suggested Citation

  • J. Gregory Sidak, 2013. "The Meaning Of Frand, Part I: Royalties," Journal of Competition Law and Economics, Oxford University Press, vol. 9(4), pages 931-1055.
    • Handle: RePEc:oup:jcomle:v:9:y:2013:i:4:p:931-1055.
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    File URL: http://hdl.handle.net/10.1093/joclec/nht040
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    Citations

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    Cited by:

    1. Wipusanawan, Chayanin, 2020. "Standard-Essential Patents and Incentives for Innovation," Discussion Paper 2020-025, Tilburg University, Tilburg Law and Economic Center.
    2. Justus Baron & Jorge Contreras & Martin Husovec & Pierre Larouche, 2019. "Making the Rules: The Governance of Standard Development Organizations and their Policies on Intellectual Property Rights," JRC Research Reports JRC115004, Joint Research Centre.
    3. Justus Baron & Tim Pohlmann, 2018. "Mapping standards to patents using declarations of standard‐essential patents," Journal of Economics & Management Strategy, Wiley Blackwell, vol. 27(3), pages 504-534, September.
    4. Gamarra, Yanis & Friedl, Gunther, 2022. "Firms' Involvement in Standardization and Average Total Costs per Patent Family," 31st European Regional ITS Conference, Gothenburg 2022: Reining in Digital Platforms? Challenging monopolies, promoting competition and developing regulatory regimes 265630, International Telecommunications Society (ITS).
    5. Galetovic, Alexander & Haber, Stephen & Zaretzki, Lew, 2018. "An estimate of the average cumulative royalty yield in the world mobile phone industry: Theory, measurement and results," Telecommunications Policy, Elsevier, vol. 42(3), pages 263-276.
    6. Jens Leth Hougaard & Chiu Yu Ko & Xuyao Zhang, 2017. "A Welfare Economic Interpretation of FRAND," IFRO Working Paper 2017/04, University of Copenhagen, Department of Food and Resource Economics.
    7. Baron, Justus, 2020. "Counting standard contributions to measure the value of patent portfolios - A tale of apples and oranges," Telecommunications Policy, Elsevier, vol. 44(3).
    8. Wipusanawan, Chayanin, 2020. "Standard-Essential Patents and Incentives for Innovation," Other publications TiSEM 5bbcc50b-2497-43a4-bba6-f, Tilburg University, School of Economics and Management.
    9. Justus Baron & Daniel F. Spulber, 2018. "Technology Standards and Standard Setting Organizations: Introduction to the Searle Center Database," Journal of Economics & Management Strategy, Wiley Blackwell, vol. 27(3), pages 462-503, September.
    10. Jonas Fabian Ehrnsperger & Frank Tietze, 2019. "Patent pledges, open IP, or patent pools? Developing taxonomies in the thicket of terminologies," PLOS ONE, Public Library of Science, vol. 14(8), pages 1-18, August.
    11. Bonani, Michela, 2023. "Essays on innovation, cooperation, and competition under standardization," Other publications TiSEM 1c87d7fc-2c24-430a-9d4e-1, Tilburg University, School of Economics and Management.
    12. Jong-Hee Hahn & Chan KIm, 2018. "Input price discrimination with differentiated final products," Working papers 2018rwp-118, Yonsei University, Yonsei Economics Research Institute.
    13. Wipusanawan, Chayanin, 2020. "Standard-Essential Patents and Incentives for Innovation," Other publications TiSEM 9ea6a894-ac05-413d-8c2d-0, Tilburg University, School of Economics and Management.
    14. Jacob Seifert, 2015. "Welfare effects of compulsory licensing," Journal of Regulatory Economics, Springer, vol. 48(3), pages 317-350, December.
    15. Wipusanawan, Chayanin, 2020. "Standard-Essential Patents and Incentives for Innovation," Discussion Paper 2020-034, Tilburg University, Center for Economic Research.
    16. Gamarra, Yanis Luca & Friedl, Gunther, 2023. "Declared essential patents and average total R&D expenditures per patent family," Telecommunications Policy, Elsevier, vol. 47(7).
    17. Hougaard, Jens Leth & Ko, Chiu Yu & Zhang, Xuyao, 2023. "A conceptual model for FRAND royalty setting," Mathematical Social Sciences, Elsevier, vol. 123(C), pages 167-176.
    18. Spulber, Daniel F., 2016. "Patent licensing and bargaining with innovative complements and substitutes," Research in Economics, Elsevier, vol. 70(4), pages 693-713.
    19. Heiden, Bowman, 2016. "The viability of FRAND: How the seminal landmark Microsoft ruling could impact the value of standard essential patents and the future of telecom standards," Telecommunications Policy, Elsevier, vol. 40(9), pages 870-887.

    More about this item

    JEL classification:

    • D21 - Microeconomics - - Production and Organizations - - - Firm Behavior: Theory
    • D23 - Microeconomics - - Production and Organizations - - - Organizational Behavior; Transaction Costs; Property Rights
    • K11 - Law and Economics - - Basic Areas of Law - - - Property Law
    • K12 - Law and Economics - - Basic Areas of Law - - - Contract Law
    • O31 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Innovation and Invention: Processes and Incentives
    • O34 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Intellectual Property and Intellectual Capital

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