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29 January 2019Patents

New guidelines on FRAND licensing for 5G SEPs published

A group of organisations today published new guidelines on fair, reasonable and non-discriminatory (FRAND) licensing for 5G standard-essential patents (SEPs), in the wake of recent high-profile disputes.

The guidelines, published by bodies including the Fair Standards Alliance (FSA) and ACT | The App Association, outlined principles that they hope courts, arbitrators and stakeholders will consider when interpreting FRAND commitments and resolving disputes.

According to the guide, SEP owners should only threaten injunctions against licensees in “exceptional circumstances” and where disputes cannot be resolved by adjudication, owing to factors such as lack of jurisdiction or bankruptcy.

It is hoped that the guidelines can help to avoid litigation over FRAND disputes, which have featured prominently recently. American microchip manufacturer Qualcomm is currently embroiled in a long-standing legal battle with Apple across multiple jurisdictions, a dispute stemming in part from accusations that Qualcomm refused to license its SEPs on FRAND terms.

Qualcomm is facing a lawsuit from the US Federal Trade Commission, which accuses the company of using anti-competitive tactics in patent licensing negotiations to maintain a monopoly over the microchip industry.

The new 5G SEP guidelines also urge that FRAND licences should be widely available and accessible to anyone seeking to implement the standard covered by the SEP. Other principles discussed in the document include the fair valuation of SEPs based on their technical merit, and transparency in FRAND negotiations.

Robert Pocknell, chair of the FSA, said it is hoped that the document will provide “useful guidance for industry players, courts and policy stakeholders that are reflecting on the future for internet of things and SEP licensing”.

App Association president Morgan Reed added that FRAND commitments are “essential to a functioning standards system” and allow SMEs to fully participate in the technology marketplace, advancing competition.

The guidelines are open for public consultation until March 28.

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