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Over the past two years a clearer picture has begun to emerge on what litigation and licence agreements need to take into account in the FRAND area. Alexander Haertel of LESI reports.
Determining what constitutes a fair, reasonable and non-discriminatory (FRAND) licence has risen in importance over the past years, especially after the ground-breaking decision of the Court of Justice of the European Union (CJEU) in a case between two Chinese competitors (Huawei v ZTE) in 2015.
Such importance is given not only in litigation but even more in licence agreements and licence offers. In litigation the evaluation of a licence is necessary to determine the chances of success of a defence on FRAND grounds. This however also requires careful consideration in the drafting process of such licence offers.
Even if one usually associates FRAND mainly with the mobile telecommunication sector, such an argument can be found in any area of technology which has standard-setting organisations (SSOs) and proprietors of IP who contribute to such a standard, eg, standard-essential patents (SEPs). Other famous standards include video and audio encoding/decoding as well as IT-related standards.
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Alexander Haertel, Lesi, FRAND, painting, clearer, picture, CJEU, litigation, SSOs, TFEU, license, license agreements