Emerging Patterns in the Judicial Determination of FRAND Rates: Comparable Agreements and the Top-Down Approach for FRAND Royalties Determination

The massive adoption of wireless technologies over the past decades has also brought about disputes regarding the interpretation of FRAND in the context of actual commercial relations. Courts in several jurisdictions worldwide ‒ in the EU, the US, China, India and Korea, among others ‒ have been called upon to flesh out FRAND terms or to assess conformity with FRAND principles. This body of case law provides rich insights into the workings of the markets for standards, but also practical guidance for parties as well as policymakers seeking a better understanding of the situation ‒ business and legal ‒ on the ground. The present article outlines some of the emerging patterns in SEP litigation worldwide, focusing on the judicial determination of FRAND rates. The common thread across jurisdictions regarding FRAND-rate determination is reliance on evidence and data in comparable licensing agreements. It is argued that comparable licensing agreements, i.e. licensing agreements signed with similarly situated parties, provide for the most reliable evidence on how markets price standardised technologies and SEPs.