Globalisation and FRAND: IP & Competition Law Perspective

The paper addresses the status of regulation of Standard Essential Patents (SEPs) in the era og globalisation and the diversity of ways in which FRAND (Fair, Reasonable and Non-Discriminatory) principles are being applied internationally. SEPs represent the core innovation in an industry and protect innovation that has taken extraordinary effort to develop. Smart phones, tablets, connected cars, smart home applications, smart retail, gaming technologies and connected healthcare are some of the examples entailing use of SEPs. Arriving at a consensus regarding application of FRAND terms at the global level, may be the need of the hour. The manner in which FRAND terms are being applied in different jurisdictions including the US and within the EU are different. Therefore, the task of arriving at a consensus is not straightforward. The paper, at first, explores the concept of SEPs, contextualises and establishes the relevance of addressing the issue. Thereafter, in the light of the recent case law – analyses the way in which FRAND terms are being interpreted in different jurisdictions, specifically within the EU and the United States. This is followed by presentation of the IP and competition law perspective. The paper concludes with a proposition for identifying the path forward.