FRAND Commitments at the International Trade Commission
A company that contributes patents to a standard setting organization typically agrees to license its patented technologies on a fair, reasonable and non-discriminatory (FRAND) basis. If such a company seeks injunctive relief for patent infringement through the ITC, the question arises of whether such actions are consistent with its FRAND commitments.
Edgeworth Partners Dr. Fei Deng, Dr. Gregory K. Leonard, and Dr. Mario A. Lopez have been retained by clients on a number of cases to evaluate FRAND issues in ITC cases, including issues that addressed the following questions:
- What are the economic foundations for FRAND commitments, and what obligations do such commitments create for licensors and licensees both?
- Did the complainant and respondent each engage in good faith negotiations with the other prior to the litigation?
- Was the complainant’s negotiating conduct with respect to the respondent consistent with its conduct with respect to other similarly-situated licensees, such that the complainant met the “non-discriminatory” prong of FRAND?
- How should FRAND commitments be evaluated when the asserted patents constitute only a subset of the complainant’s standards-essential patent portfolio that is subject to a FRAND obligation?