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Title: "International Data Privacy Standards: A Global Approach (Australian Privacy Foundation Policy Statement)"
Author: Graham Greenleaf
Roger Clarke
Nigel Waters
Source: UNSW Law Research Paper No. 2013-62
Publication Date: September 17 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: The purpose of this statement is to summarise the Australian Privacy Foundation's position on each of the main international instruments concerning data privacy, stating which aspects of and uses of these instruments APF supports and opposes. The areas covered by the statement are as follows: 1. Evolving international standards and Australia 2. OECD privacy Guidelines (1980, revised 2013) 3. Council of Europe Convention 108 (1981), plus Additional Protocol (2001) 4. European Union data protection Directive (1995) and proposed Regulation 5. APEC Privacy Framework (2005) and Cross-Border Privacy Rules (CBPR) (2011) 6. United Nations instruments ICCPR (1966) and Guidelines (1990) 7. United States law, policy and practices 8. ISO and other technical standards 9. ICDPPC Resolution ('Madrid Declaration') (2009)
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Title: "Incentive Effects from Different Approaches to Holdup Mitigation Surrounding Patent Remedies and Standard-Setting Organizations"
Author: F. Scott Kieff
Anne Layne-Farrar
Source: Journal of Competition Law & Economics, 2013
Publication Date: September 20 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement - namely injunctions and money damages in the form of lost profits or reasonable royalties - with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad holdup problem, including patent holdup, reverse patent holdup, and government holdup. The article elucidates a number of existing legal institutions and organizations that significantly mitigate the threat of patent holdup, including particular doctrines in the law of patent remedies and particular private ordering arrangements such as Standard Setting Organizations (SSOs). It also highlights some of the unfortunate unintended consequences of currently popular suggestions for mitigating patent holdup. It then explores the economic incentives driving the actions by both patent holder and licensee to show different categories of holdup risk they create. It closes by introducing a suggested framework for courts and administrative agencies to use to directly target the identified categories of holdup risk, and thereby limit harmful side effects.
Link: Full Text

Title: "Copyright Termination and Technical Standards"
Author: Jorge L. Contreras
Andrew Hernacki
Source: University of Baltimore Law Review, Vol. 43, 2014
Publication Date: January 31 2014
Date Added: April 23 2014
Free/Fee: Free
Abstract: Section 203 of the Copyright Act permits authors to terminate any grant of rights in a copyright between 35 and 40 years after the initial grant was made. In this article we analyze the application of Section 203 termination to technical standards documents, focusing in particular on the exclusion of works-made-for-hire, the treatment of joint works and derivative works. We conclude that, although Section 203 is theoretically applicable to technical standards, several statutory obstacles would impede the wholesale termination of standards-related license grants. Nevertheless, in order to avoid costly and time-consuming litigation, we recommend that Congress or the courts explicitly acknowledge the inapplicability of Section 203 to technical standards.
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Title: "The Role of International Actors in Post-Communist Countries: Coercion or Persuasion? The Transfer of Hospital Design Standards by International Organizations and Private Firms"
Author: Rodica Plugaru
Publication Date: August 29 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: This paper explores the role of international actors in post-communist transformation. By taking the case of hospital design standards, it explains how the national actors choose to leave aside the national regulations and to adopt foreign technical standards. The paper takes the case of technical standards employed for the modernization of healthcare facilities in Ukraine and Moldova. An in-depth comparative case study of two projects revealed that national architects of these post-soviet countries use foreign standards. While the change of standards is a similar outcome in both cases, the international actors involved are different. My findings suggest that while both international organizations and private actors diffuse foreign technical standards in post-soviet countries, the processes through which they realize it differs. Whereas international organizations dispose of coercive means to impose foreign solutions, private actors need to negotiate and to convince for their adoption. Drawing on recent debates on policy diffusion and transfer (Dolowitz and Marsh 2012; 2000, Simmons and al. 2008, Stone 2010, 2012), the results shed light on "carriers" of institutional arrangements among different political systems.
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Title: "FRAND in China"
Author: D. Daniel Sokol
Wentong Zheng
Publication Date: February 3 2014
Date Added: April 23 2014
Free/Fee: Free
Abstract: This Essay discusses antitrust-related FRAND issues in China. In Part I, the Essay provides an overview of China's antitrust regime and its interaction with intellectual property rights. In doing so, the Essay offers an explanation of the nature of the Chinese antitrust regime that builds upon both the industrial organization and the political economy literatures. In Part II, this Essay discusses standard setting in China, and how FRAND-related issues are handled under Chinese standard-setting laws and regulations. In Part III, the Essay explores recent developments in Chinese courts that impact FRAND. In particular, it discusses the Huawei v. InterDigital case and its implications for global FRAND licensing. In Part IV, the Essay offers thoughts on the lack of transparency in China's antitrust regime as well as the use of industry policy in the FRAND setting and how these issues may negatively impact consumer welfare.
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Title: "Judging Monopolistic Pricing: F/RAND and Antitrust Injury"
Author: William H. Page
Publication Date: October 8 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: In a 2013 opinion in Microsoft v. Motorola, Judge James Robart calculated "reasonable and nondiscriminatory" or RAND royalties that Motorola could lawfully charge Microsoft for licenses to use Motorola patents that were essential to two industry standards. Although the case involved only a claim for breach of contract, Judge Robart's opinion regulated monopoly pricing, a task courts try to avoid in other contexts, claiming institutional incapacity. In this instance, however, Judge Robart identified standards that he believed adequately guided him in the task. He recognized that the economic purposes of the RAND commitment were to prevent owners of standards-essential patents from, first, holding up licensees by exploiting the additional monopoly power that the standard conferred and, second, inefficiently stacking royalties with other essential patents. In estimating rates consistent with these purposes, he used as starting points the rates charged by two patent pools associated with the standards.
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Title: "Governance for Cloud Computing: The Role of Public and Private Rulemaking in Promoting the Growth of a New Industry"
Author: Oliver R. Goodenough
Source: Vermont Law School Research Paper No. 34-13
Publication Date: October 19 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: As cloud computing becomes ubiquitous, the need to fashion better and more finely targeted rules for the cloud takes on increasing urgency. Governance at its best is not an abstraction; rather, it is a set of institutional structures that help people to achieve better outcomes than would occur in a world of unconstrained, self-interested decision making. The rules in contracts, through associations, and by governments can each play a role in creating beneficial governance, provided they are crafted to effectively meet the challenges and characteristics of the activity in question. This paper - still a work in process - explores a number of factors that rule makers should take into account in crafting such a suite of laws and customs. These factors include the structure and history of cloud computing, the ways in which it creates, captures and allocates values, the fundamental challenges of trust for the industry, and the toolkit of private and public rule making that can create structures to help cloud computing reach is potential for providing and distributing benefits. As recent revelations of government surveillance underline, policy-making efforts for cloud computing are rendered particularly complicated by the shifting pattern of convergence and divergence of interests among users, providers, and governments.
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Title: "Market Reliance and Patent Pledges"
Author: Jorge L. Contreras
Source: Utah Law Review, Forthcoming
Publication Date: February 3 2014
Date Added: April 23 2014
Free/Fee: Free
Abstract: In the midst of today's global smartphone wars, patent holders are making promises. They are promising, among other things, not to assert their patents against certain categories of products, such as open source code software, or to license them on terms that are "fair, reasonable and non-discriminatory" (FRAND). And these promises are not being made in closed door negotiations, but in public fora, for the benefit of entire markets. I call these public, market-facing promises "patent pledges", and they are beginning to dominate certain large and heavily litigated sectors of the global technology marketplace.
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Title: "Competitive Effects of Collaborative Arrangements: Impact of the MPEG-2 Pool on Outsiders' Innovative Performance"
Author: Keyvan Vakili
Publication Date: November 20 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: Recent empirical research suggests that modern patent pools might be anti-innovative. In this paper, first I investigate the effect of the MPEG-2 pool, the first modern patent pool, on the patenting rate of firms outside the pool. Results confirm previous findings and show a substantial decline in outsiders' patenting rate after the pool formation. Subsequently, I explore three mechanisms that can potentially explain this negative impact. The results suggest that the observed reduction is mainly due to a shift in firms' investment from additional patentable technological exploration toward implementing the pool technology in their products. I do not find support for arguments linking the decline to an increase in the litigation risks or a decrease in the financial performance of outsiders after the pool formation.
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Title: "A US Court Issues Second Ruling Determining RAND Rate for Standard Essential Patent (Innovatio)"
Author: Michael A. Carrier
Source: e-Competitions Bulletin, No 58558, 2013
Publication Date: November 20 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: In the Innovatio litigation, Judge James Holderman of the U.S. District Court for the Northern District of Illinois determined the royalty a patentee could obtain after promising to license its patent on reasonable and nondiscriminatory (RAND) terms. Innovatio's patents related to the 802.11 WiFi standard, which allows wireless devices such as routers, laptops, and cell phones to communicate with one another.
Link: Full Text

Title: "The Use of Standard Essential Patents: Competition Policy Issues"
Author: Simonetta Vezzoso
Source: XIV April International Academic Conference on Economic and Social Development, National Research University 'Higher School of Economics', Moscow April, 2013
Publication Date: April 1 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: The threat, seeking and enforcement of injunctions, i.e. court decisions whereby a party is ordered to desist from an infringement of an intellectual property right, have recently come under the spotlights of courts and regulatory authorities on both sides of the Atlantic. The main purpose of this brief paper is to highlight some of the crucial issues competition authorities and courts are likely to consider when applying Article 102 TFEU to the threat, seeking and enforcement of injunctive reliefs by owners of standard essential patents.
Link: Full Text

Title: "Standard-Essential Patents and the Problem of Hold-Up"
Author: Joe Kattan
Chris Wood
Publication Date: December 19 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: Standard-setting organizations typically require FRAND commitments from owners of standard-essential patents in order to ensure the availability of technologies needed to practice the standard. Failure to observe these FRAND commitments can lead to "patent hold-up" when implementers of a standard are confronted with supracompetitive royalty demands from SEP owners exploiting the market power associated with the standard. This article reviews empirical evidence from several recent cases suggesting that the problem of patent hold-up is real. We then analyze a number of arguments that have been advanced to downplay the risks of patent hold-up and demonstrate that they are flawed.
Link: Full Text

Title: "Injunctions for Frand-Pledged Standard Essential Patents: The Quest for an Appropriate Test of Abuse Under Article 102 TFEU"
Author: Nicolas Petit
Publication Date: December 23 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: This paper discusses the legal test under which owners of Standard Essential Patents (SEPs) who have pledged to grant licences to those SEPs on Fair Reasonable and Non-Discriminatory (FRAND) terms can be held guilty of an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU) by seeking, or threatening to seek, injunctions against unlicensed implementers of their technology.
Link: Full Text

Title: "Standards, Innovation, and Latecomer Economic Development A Conceptual Framework"
Author: Dieter Ernst
Source: East-West Center Working Paper No. 134
Publication Date: September 1 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: Little is known about the impact of standards on the economic development of countries which are latecomers to industrial manufacturing and innovation. Standardization is regarded primarily as a technical issue, and hence receives only limited high-level policy support. However, technical standards contribute at least as much as patents to economic growth. As a key mechanism for the diffusion of technological knowledge, technical standards contribute to productivity growth. Equally important are qualitative impacts for instance of environmental, health, food and work safety standards. A well-functioning standardization system and strategy can work as a catalyst for translating new ideas, inventions and discoveries into productivity-enhancing innovation. Standards thus are the missing link in a growth strategy which seeks to create quality jobs in higher-value added advanced manufacturing and services.
Link: Full Text

Title: "FRAND and Other Requirements in China's Announcement on Releasing (Provisional) Administration Regulations of National Standards Involving Patents"
Author: Dan Prud'homme
Source: Journal of Intellectual Property Law & Practice, May 2014, vol. 9, issue 5
Publication Date: February 1 2014
Date Added: April 23 2014
Free/Fee: Free
Abstract: New measures took effect on 1 January 2014 governing national standards involving patents in China. These measures have noteworthy implications for businesses, given that they include reporting requirements that add to uncertainty and therefore the risk of non-compliance; they include other clearer reporting requirements that raise compliance costs; they specify parameters of patent licensing, including FRAND terms, for voluntary national standards; they allow discretion in determining the necessity of suspending and revising voluntary national standards when patent licensing arrangements are not finalized; they mandate patent licensing for compulsory national standards and also provide some transparency in national standards development and reporting.
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Title: "Standardization, IPRs and Open Innovation in Synthetic Biology"
Author: Timo Minssen
Jakob Wested
Source: &quot;Innovation, Competition, Collaboration&quot;, Bucerius Law School, Hamburg, Germany
Publication Date: February 14 2014
Date Added: April 23 2014
Free/Fee: Free
Abstract: An effective and just sharing of resources for innovation needs a supportive infrastructure. One such infrastructure of both historic and contemporary significance is the development of standards. Considering recent developments within the software and ICT industries, it seems fair to assume that the process of standardization may also have significant impact on the development and adoption of Synthetic Biology (SB). Within SB different standardization efforts have been made, but few have assumed dominance or authority. Standardization efforts within SB may differ within various technical areas, and also the basic processes of standard creation can be divided into various categories. The different technical areas and processes for standardization differ in their speed, handling of interests and ability to dodge possible IPR concerns. Out of this notion arises i.a. the following questions: How comparable is engineering in SB to more traditional fields of engineering?; What type of standards have emerged and what bearing have IPRs on these?; and, How applicable are the approaches adopted by the standards-setting organizations in the information and communication technology (ICT) to biological standards? These and further legal issues related to IP, regulation, standardization, competition law & open innovation require a careful consideration of new user-generated models and solutions.
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Title: "Indigenous Innovation and Globalization: The Challenge for China's Standardization Strategy"
Author: Dieter Ernst
Source: D. Ernst, Indigenous Innovation and Globalization: The Challenge for China's Standardization Strategy, 2011
Publication Date: June 1 2011
Date Added: April 23 2014
Free/Fee: Free
Abstract: The study examines defining characteristics of the evolving Chinese innovation and standards system and explores possible impacts for China as well as the global economy. China considers standardization to be an essential tool for improving its innovative capacity, yet very little is known about this critical building block of China's innovation system. At the center of the analysis is a fundamental challenge for China's standardization strategy: How can China reconcile its primary objective of strengthening indigenous innovation with its leading role in international trade and deep integration into global corporate networks of production and innovation?
Link: Full Text

Title: "America's Voluntary Standards System: A 'Best Practice' Model for Asian Innovation Policies?"
Author: Dieter Ernst
Source: East-West Center Policy Studies Series, No. 66, 2013
Publication Date: May 24 2013
Date Added: April 23 2014
Free/Fee: Free
Abstract: There is a keen interest across Asia in the potential advantages of America's market-led system of voluntary standards and its contribution to the country's superior innovation capacity. For its proponents, America's decentralized, flexible, and bottom-up approach to standard-setting is a 'best practice' model for innovation policy. Observers in Asia however are concerned about possible drawbacks of a standards system that is largely driven by the private sector. The study reviews the historical roots of the American voluntary standards system, examines its current defining characteristics, and highlights its strengths and weaknesses. A tradition of decentralized local self-government has given voice to diverse stakeholders in innovation. However, a lack of effective coordination of multiple stakeholder strategies constrains effective and open standardization processes. To correct these drawbacks, the government needs to act as an enabler, coordinator, and, if necessary, an enforcer of the rules of the game in order to prevent abuse of market power. Asian countries that seek to improve their standards systems should study the strengths and weaknesses of the American system. Attempts to replicate the American standards system will face clear limitations - persistent differences in Asia's economic institutions, levels of development, and growth models are bound to limit convergence to a US-style market-led voluntary standards system
Link: Full Text

Title: "Invention, Industry Standards, and Intellectual Property"
Author: Mark R. Patterson
Source: Berkeley Technology Law Journal, Vol. 17, 2002
Publication Date: January 1 2003
Date Added: April 23 2014
Free/Fee: Free
Abstract: When an industry standard incorporates a patented invention, the demand for products that comply with the standard has two components. Some of the demand may be for the inherent technical advantages of the invention; the patentee is generally entitled to revenues attributable to this demand. But some of the demand is for the benefits of standardization, such as interoperability, and the patentee is not entitled to revenues attributable to this demand. From this point, the article draws two conclusions. First, the amounts to which a patentee is entitled, either in litigation or in licensing negotiations, should be calculated by determining the portion of demand that is attributable to its invention. In some cases, there will be evidence from which one can make this determination directly; in others, there may be no such direct evidence, but it may still be possible to draw inferences regarding the contributions of the patentee. Second, because the contributions of the standard itself, like interoperability, are economically distinct, the "owner" of a standard - typically a standard-setting organization - should be allowed to negotiate license fees with the patentee of an invention incorporated in the standard.
Link: Full Text

Title: "Legal and Technical Standards in Digital Rights Management Technology"
Author: Dan L. Burke
Source: Minnesota Legal Studies Research Paper No. 05-16
Publication Date: April 5 2005
Date Added: April 23 2014
Free/Fee: Free
Abstract: This paper examines certain social costs of deploying digital rights management or DRM systems to protect copyrighted content. The calculus of costs and benefits for such technical self-help is highly complex, and the prospect for successful self-help via such measures is uncertain due to the deterministic nature of the technical design. DRM systems essentially provide an automated alternative to legal protections such as copyright. But because it is impossible to program complex situational responses into DRM systems, DRM constitutes the equivalent of a legal rule, rather than a legal standard. Thus the literature on rules and standards is useful in evaluating the effects of DRM deployment. As this literature would predict, DRM shifts discretion away from the user, toward the producer, and DRM design therefore resembles legal rule making rather than legal standard setting. Previous analyses of rules and standards suggests that rules are preferable when the costs of ex ante decision-making will be lower than the costs of ex post discretion and adjudication. Ex ante DRM design decisions by content producers are also likely to be driven by the character of the technology. At the same time that DRM stands in for a legal rule, it also comprises a technical standard. For reasons of interoperability and trust management, DRM will tend to converge on a single standard. This means that DRM will tend toward a type of technological monoculture, presenting opportunities for the standards owner to engage in anti-competitive market distortions. This result will tend to be reinforced by legal anti-circumvention measures, a trend already apparent in the employment of the DMCA in some court decisions. However, more recent appellate decisions seem determined to resist this result, employing statutory re-interpretation and the threat of anti-competition sanctions to reverse the worst effects of DRM market distortion.
Link: Full Text

Title: "Patents and the Performance of Voluntary Standard Setting Organizations"
Author: Marc Rysman
Timothy Simcoe
Source: NET Institute Working Paper No. 05-22
Publication Date: October 11 2005
Date Added: April 23 2014
Free/Fee: Free
Abstract: This paper measures the technological significance of voluntary standard setting organizations (SSOs) by examining citations to patents disclosed in the standard setting process. We find that SSO patents are cited far more frequently than a set of control patents, and that SSO patents receive citations for a much longer period of time. Furthermore, we find a significant correlation between citation and the disclosure of a patent to an SSO, which may imply a marginal impact of disclosure. These results provide the first empirical look at patents disclosed to SSOs, and show that these organizations not only select important technologies, but may also play a role in establishing their significance.
Link: Full Text

Title: "Standard Setting Committees: Consensus Governance for Shared Technology Platforms"
Author: Timothy Simcoe
Source: American Economic Review, 102(1): 305-336
Publication Date: June 11 2010
Date Added: April 23 2014
Free/Fee: Free
Abstract: Voluntary Standard Setting Organizations (SSOs) use a consensus process to create new compatibility standards. Practitioners have suggested that SSOs are increasingly "politicized" and perhaps incapable of producing timely standards. This paper develops a simple model of standard setting committees and tests its predictions using data from the Internet Engineering Task Force, an SSO that produces many of the standards used to run the Internet. The results show that an observed slowdown in standards production between 1993 and 2003 can be linked to distributional conflicts created by the rapid commercialization of the Internet
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Title: "Does the FTC Have a New IP Agenda?"
Author: Joshua D. Wright
Source: Federal Trade Commission
Publication Date: March 11 2014
Date Added: April 2 2014
Free/Fee: Free
Abstract: Regarding the approach of antitrust law to Intellectual Property Rights ("IPRs"), with a focus upon the FTC's recent enforcement actions applying the antitrust laws to IPRs and FTC policy initiatives involving IPRs, and whether the FTC's recent activities at the intersection of antitrust and IPRs are simply the extension of conventional antitrust principles that have been applied to real property and other intangible assets for decades or, alternatively, do those activities suggest a new approach to the antitrust analysis of IPRs.
Link: Full Text

Title: "Upgrading India's Electronics Manufacturing Industry: Regulatory Reform and Industrial Policy"
Author: Dieter Ernst
Source: Honolulu: East-West Center
Publication Date: January 5 2014
Date Added: February 7 2014
Free/Fee: Free
Abstract: India, a leading exporter of information-technology services, faces a fundamental puzzle. Its electronics industry is struggling despite a huge and growing domestic market and pockets of world-class capabilities. Drawing on survey questionnaires and interviews with key private and public industry players and multinationals, this study examines how restrictive regulations and a largely dysfunctional implementation of past support policies have constrained investment in plants and equipment and technology absorption and innovation. Electronics manufacturing remains disconnected from India's chip-design capabilities which are integrated, instead, into global networks of innovation and production. India's growing domestic demand for electronic products results in rising imports of final products and high import-dependence for key components. Bold action is required to change the anemic growth of electronics manufacturing just when the global electronics industry is rapidly ending historical strategies for growth. To achieve its potential, electronics manufacturing in India must move beyond "high-volume, low-cost" activities, towards a greater focus on "low-volume, high-value" production and on frugal innovation for the domestic market. The government's National Policy on Electronics is a first step on this path, but it needs to be complemented by reforms relating to taxation, customs, compliance, and inspections. Equally important are efforts to enhance the strategic use of technical standards and smart approaches to international trade diplomacy.
Link: Full Text

Title: "A Brief History of Frand"
Author: Jorge L. Contreras
Source: Social Science Research Network
Publication Date: January 27 2014
Date Added: January 29 2014
Free/Fee: Free
Abstract: Much has been written lately about commitments that participants in standards-setting activities make to license their patents on terms that are "fair, reasonable and non-discriminatory" (FRAND). These discussions pay little attention, however, to a long series of remedial patent licensing decrees issued by federal courts from the 1940s through 1970s that outwardly resemble FRAND commitments in all but the rationale for their imposition. These early decrees shed light on questions only now re-emerging as pertinent to the FRAND debate: the meaning of the non-discrimination prong of the FRAND commitment, the degree to which courts should intervene in the determination of reasonable royalty rates, the use of arbitration as a means for resolving licensing disputes, the extent to which royalty-free licensing may be "reasonable", the effects of a potential licensee's refusal to accept a patent holder's license offer, the acceptability of a patent holder's demand for reciprocal licenses from its licensees, and means for ensuring that such commitments survive the transfer of underlying patents. This article offers the first historical analysis of the patent licensing decrees issued from the 1940s through the 1970s in view of their relationship to FRAND commitments made in the standards-setting context. It concludes that these historical patent licensing orders are, in fact, the direct lineal predecessors of today's FRAND commitments, and that despite their differences, the interpretation and analysis of these remedial orders by courts, enforcement agencies and private firms offer essential insight into the interpretation of FRAND commitments today.
Link: Full Text