The CJEU prepare to hand down their decision in Huawei v. ZTT (Image via Creative Commons Licence; Author Magnus Manske)

A riddle, wrapped in a mystery, inside an enigma – Churchill may have been talking about Russia, but when I hear this phrase FRAND licensing is more likely to come to mind, and more particularly, FRAND licensing for standards essential patents (SEPs).  It must have all sounded so straightforward once – all the standards bodies agreed that you could bring your patents to the party, you would license them to all your competitors, you’d get a royalty back to compensate you for your R&D efforts, and it would all be fair, reasonable… and nice – well, technically “non-discriminatory”, but “nice” seems to get the wooliness of the intention over better – with the end result of a collection of patents all licensed to the rest of the industry under FRAND terms.  It all seemed so reasonable that an engineer at the standards meeting could concentrate on reaching the best technical solution (his or hers, obviously…) without any thought to yucky patent stuff.

Yeah, right.  It hasn’t been nice for a while – not a surprise, as a requirement to license SEPs on FRAND terms is little more than an agreement to make SEPs Someone Else’s Problem and not an issue for the standards body concerned.  Despite a good twenty years of fractious patent disputes about SEPs and FRAND licensing absorbing vast quantities of legal effort – I’ve spent many hours on the DRAM and 802.11a patent sagas alone, and I was barely on the fringes of both – many key questions, such as how FRAND license royalties should be calculated and just what a patent proprietor is entitled to do up to the point where a licensing target becomes a paid-up licensee, have nebulous answers at best. (more…)