| Technical interoperability standards are critical elements of mobile telephones, laptopcomputers, digital files, and thousands of other products in the modern networked economy.Most such standards are developed in so-called voluntary standards-developmentorganizations that require participants to license patents essential to the standard on termsthat are “fair, reasonable and non-discriminatory”(FRAND). FRAND commitments arethought to avoid the problem of patent hold-up: the imposition of excessive royaltydemands after a standard has been widely adopted in the market. While, at first blush,FRAND commitments seem to assure product vendors that patents will not obstruct themanufacture and sale of standards-compliant products, in reality these commitments arevague, they have proven ineffective to address the problem of patent stacking, which occurswhen multiple patent holders assert rights in, and demand royalties on, the same standard.The recent surge of litigation in the smart phone and other technology sectors, much ofwhich concerns the interpretation and enforcement of FRAND commitments, has broughtthese issues to the attention of regulators, industry, and the public, and many agree that abetter approach to FRAND is needed.This article is divided into three chapters. The first chapter analyzes the relationshipbetween the technical interoperability standards and the patents, and focus on theinfluence of the combination of the technical interoperability standards and the patents.The second chapter analyzes the origin, the application and the current developmentstatus of the FRAND commitments, and analyzes the specific meaning of FRANDcommitments with several cases, in the last this chapter emphasizes the ambiguity of theFRAND commitments. The third chapter analyzes the reasonableness of the highest ratesof accumulation licensed from the perspective of patent licensing fees, striving to make themeaning of the FRAND commitments clearer. |
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