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Encouraging FRAND-ly Negotiations: A Comparison of the United States and European Approaches to Allowing Injuctive Relief In Cases Involving FRAND-Encumbered Standard-Essential Patents

Publication Title

Washington University Global Studies Law Review

Abstract

This Note maintains that holders of fair, reasonable, and non-discriminatory ("FRAND")-encumbered standard-essential patents ("SEPs") should continue to have access to injunctive relief in United States courts as well as exclusionary relief at the United States International Trade Commission (“USITC”) in limited circumstances; the Note argues these limited circumstances should include instances of egregious knowing or willful infringement and instances where an implementer refuses to take a license on FRAND terms. The Note also argues that United States courts and the USITC should develop a set of guidelines outlining the obligations of participants in licensing negotiations over FRAND-encumbered SEPs, such as the “safe harbor” guidelines developed by the European Union in the Huawei v. ZTE litigation. Such guidelines would encourage parties to engage in good-faith negotiations by reducing opportunistic behavior, facilitating innovation and participation in the standard-setting process, and promoting economic efficiency.

Part II of this Note provides background on SSOs and FRAND commitments as well as patent infringement, injunctions, and special considerations involved in the licensing of FRAND-encumbered SEPs. Part III examines United States legal precedent concerning the grant of injunctions and exclusionary relief in disputes over SEPs subject to FRAND licensing commitments as well as two key decisions from the European Union addressing the issue. Part IV highlights some of the reasons why injunctions and exclusionary relief should remain available to holders of FRAND-encumbered SEPs and argues that the United States courts and agencies should develop guidelines outlining the obligations, and proper conduct expected of parties involved in licensing negotiations over FRAND-encumbered SEPs. Part V concludes the Note, underscoring the benefits of developing a clear and comprehensive framework for licensing negotiations of FRAND-encumbered SEPs and delineating the instances in which injunctive and exclusionary relief remains available to holders of FRAND-encumbered SEPs.

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