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From Patent Hold-Up to Patent Hold-Out?

From Patent Hold-Up to Patent Hold-Out?
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Author(s): Marie Barani (Independent Researcher, UK)
Copyright: 2018
Pages: 26
Source title: Corporate and Global Standardization Initiatives in Contemporary Society
Source Author(s)/Editor(s): Kai Jakobs (RWTH Aachen University, Germany)
DOI: 10.4018/978-1-5225-5320-5.ch007

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Abstract

Patents are an efficient tool for companies contributing to the standardization process to recover investments made in the process and continue participating in future standardization efforts. However, to avoid abusive use of standard-essential patents (SEPs) incorporated in de jure standards, standardization contributors are required to make their SEPs available on fair, reasonable and non-discriminatory terms and conditions (the [F]RAND commitment). This commitment has been created to fairly and adequately reward innovators while at the same time allow access to the standardized technology at (F)RAND terms and conditions; the latter preventing patent hold-up. With the changes in the cellphone market in the last ten years, the content of this (F)RAND commitment has been challenged in courts and in front of antitrust authorities. The question is whether this duty, set up to avoid hold-up, is not used by some implementers to engage in hold-out.

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