The Comparable Licence Approach and the “ND” Issue in Court FRAND Determinations
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Kalyan Dasgupta and Eric Stasik discuss the “non-discrimination” (ND) issue. Reviews of comparable licences, an integral part of fair, reasonable and non-discriminatory (FRAND) determinations, should not focus overly on the “most comparable” licences. Where the task at hand is to determine whether the standard essential patent (SEP) holder has fulfilled its FRAND obligation, the focus should be on whether the SEP holder’s offers to the licensee in question are similar to the offers it made in other negotiations which resulted in licences that might be deemed FRAND.
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