Fair, Reasonable and Non-Discriminatory (Frand) Terms: A Challenge for Competition Authorities

Mariniello, Mario

doi:10.1093/joclec/nhr010

Cited by 41 publications

(5 citation statements)

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“…A second interpretation of the non-discrimination obligation has been put forward by Mariniello. 371 Mariniello suggests that "the FRAND commitment waives the patent holder's right to refuse to license its IP rights to anybody seeking such a license". 372 On the other hand, the patent holder could vary the royalty rate on the basis of the specific circumstances of each licensee.…”

Section: 4a 'Non-discrimination' In Seps Licensingmentioning

confidence: 99%

Shall we share? The principle of FRAND in B2B data sharing

Botta

2023

SSRN Journal

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Section: 4a 'Non-discrimination' In Seps Licensingmentioning

confidence: 99%

Shall we share? The principle of FRAND in B2B data sharing

Botta

2023

SSRN Journal

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“…A second interpretation of the non-discrimination obligation has been put forward by Mariniello. 73 The author suggests that "the FRAND commitment waives the patent holder's right to refuse to license its IP rights to anybody seeking such a license". 74 On the other hand, the patent holder could differentiate the royalty rate on the basis of the specific circumstances of each licensee.…”

Section: Iib the Scope Of The Nd Prong: When Can The Sep Holder Discr...mentioning

confidence: 99%

Nondiscrimination in Standard Essential Patents; ND Prong V. Art. 102(C) TFEU

Botta¹

2021

Journal of Competition Law &Amp; Economics

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The article analyses the meaning of the nondiscriminatory principle in disputes concerning Standard Essential Patents (SEPs) under EU competition and contract law (that is, ND prong). The article reviews the economics literature, looking at the welfare effect of price discrimination and the interpretation of the ND prong provided by a number of economists. Secondly, the article analyses the case law of the EU Court of Justice on Art. 102(c) TFEU and recent rulings by the German and British courts concerning the scope of the application of the ND prong. A strategy of discrimination in regard to royalty rates may be sanctioned, both under competition and contract law. However, Art. 102(c) requires a higher burden of proof than contract law. As a consequence, it is unsurprising that no case of royalty rate discrimination has ever been sanctioned in Europe as an abuse of dominance. While courts and economists generally agree that the ND prong is applicable only when licensees are “similarly situated,” to date, there is no common understanding of the meaning of this expression. In particular, it is unclear whether, and to what extent, licensees are “similarly situated” if they are not competitors in the downstream market.

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“…46 When a 43 Implicitly, given that our model features only one licensee, we are focusing here on the "fair and reasonable" portion of the FRAND requirement. The extent to which innovators should be allowed to price discriminate between licensees under a FRAND regime is discussed in Swanson and Baumol (2005) and Mariniello (2011), for example. The incentives for owners of essential IP to charge excessive royalties and the associated impact on downstream competition is further discussed in Rey and Salant (2012) and Layne- Farrar and Schmidt (2010).…”

Section: Compulsory Licensing In Standard-setting Organisationsmentioning

confidence: 99%

Welfare effects of compulsory licensing

Seifert

2015

J Regul Econ

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This paper derives necessary and sufficient conditions for compulsory licensing to increase consumer surplus and total welfare, taking into account both static (technology transfer) and dynamic (innovation) effects. When the risk-free rate is low, compulsory licensing is shown unambiguously to increase consumer surplus. Compulsory licensing has an ambiguous effect on total welfare, but is more likely to increase total welfare in industries that are naturally less competitive. Finally, compulsory licensing is shown to be an effective policy to protect competition per se. The paper also demonstrates the robustness of these results to alternative settings of R&D competition and discusses their significance for the debate on compulsory licensing in the context of standard-setting organisations and pharmaceutical trade.

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Fair, Reasonable and Non-Discriminatory (Frand) Terms: A Challenge for Competition Authorities

Cited by 41 publications

References 0 publications

Shall we share? The principle of FRAND in B2B data sharing

Shall we share? The principle of FRAND in B2B data sharing

Nondiscrimination in Standard Essential Patents; ND Prong V. Art. 102(C) TFEU

Welfare effects of compulsory licensing

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