Why Royalties for Standard Essential Patents Should Not Be Set by the Courts

Why Royalties for Standard Essential Patents Should Not Be Set by the Courts

Stanley Besen
Antitrust & Competition

According to the consensus view, a Fair Reasonable and Non-Discriminatory (FRAND) royalty should be the cost of obtaining a license just before the patented invention is declared essential to compliance with an industry standard, which should, in turn, reflect the value of the invention over its best alternative. However, based upon the way in which FRAND royalties were determined in a number of recent cases, this article argues that courts generally will not have the information needed to implement the consensus view and that, as a result, greater effort should be taken to have these royalties determined before standards are adopted. To read the article, click the link below.

Download PDF