This article addresses the issues of overlapping enforcement of antitrust laws and FRAND (Fair, reasonable and non-discriminatory terms) in standard essential disputes. Briefly, this article observes that the evolving FRAND terms will affect the degree that antitrust laws may intervene into SEP license practice. Part I of this article is a brief introduction to the background and main sections. Part II describes the evolvement of FRAND into a globally converged standard of royalty determination and a process through joint efforts of global courts. Part III discusses the changing interaction of FRAND with antitrust laws in three major jurisdictions, respectively China, European Union and the U.S., in light of evolving FRAND. Part IV finds when FRAND is able to constrain the monopoly created by standardization as what happens in a highly competitive market, antitrust laws should gradually step down from interfering with SEP license practice to avoid over-burdening the SEP owners and curtailing innovation.
Claire Guo, Intersection of Antitrust Laws with Evolving FRAND Terms in Standard Essential Patent Disputes, 18 J. Marshall Rev. Intell. Prop. L. 259 (2019)