Methodologies for FRAND Determination
evidence from global case law
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Beschreibung
The present study examines how courts around the world determine fair, reasonable and non-discriminatory (FRAND) terms and conditions for the licensing of standard-essential patents. Based on a comprehensive global corpus of judicial FRAND determinations the it examines how courts have approached FRAND determinations in practice. Despite differences in legal frameworks across jurisdictions, courts share a common understanding of FRAND as a mechanism to balance fair compensation for patent owners with broad access to standards for implementers. FRAND case law is moving from defining licensing conditions in the abstract to applying them through concrete methodologies. Comparable licences have emerged as the main method relied on by courts, while the top-down approach is used less frequently and often as a cross-check. Both approaches raise implementation challenges, from selecting and adjusting complex agreements to determining aggregate royalty rates and apportioning them to the relevant portfolio. Patent data is central to both methodologies, although several indicators remain contested.
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