A Two-Dimensional Approach to Non-Discriminatory Terms in FRAND Licensing Agreements

Abstract

This paper looks at the two interpretations of non-discriminatory within fair, reasonable, and non-discriminatory (FRAND) licensing terms. Nondiscriminatory has been interpreted literally to mean offering identical terms to license seekers. Non-discriminatory has also been interpreted as a commitment to guarantee access to all willing licensees. Courts in the U.S., Europe, and China have adopted one of these two interpretations or blended them. This Paper provides a comparative analysis on how U.S., European, and Chinese courts have approached non-discriminatory when patent holders guarantee to license their standard essential patent on FRAND terms. The court decisions in these three jurisdictions are used to create two spectrums to show the variations in these two interpretations. These two spectrums show some convergence over the years.