Judge Robart’s Opinion in Motorola vs. Microsoft and the Future of FRAND

Posted by Andy_Updegrove on Apr 29, 2013 9:37 PM EDT
ConsortiumInfo.org Standards Blog; By Andy Updegrove
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Perhaps the most important term in any standards organization’s Intellectual Property Policy (IPR) policy is the acronym “RAND,” standing for “reasonable and non-discriminatory” (in Europe, they add an “F” – for “fair”). The problem is, no one can agree on exactly what it should mean.

Virtually every other term in such a policy will appear in one of many variations from policy to policy, and these definitions can be quite lengthy and precise. But the definition of F/RAND is always word for word the same – never is a different term used, nor is any additional elaboration provided to explain exactly what “fair” or “reasonable” are intended to mean.

The result is that when two parties – the owner of a patent claim that an implementer of a standard can’t avoid infringing (an “Essential Claim”) and a party that wants to implement the standard – can’t agree on what the boundaries of these words should be, a third party is needed to settle the dispute....

Last week, the task of defining FRAND became incrementally easier, with the handing down by Justice James Robart of a...closely reasoned opinion that is based in part on pre-existing rulings, but in several significant aspects breaks new ground. It is these new aspects that offer the greatest value, because they can be used as a reference by future parties seeking to reach agreement on FRAND terms, and by judges when the parties cannot. But this begs the questions of whether the novel aspects of Judge Robart’s opinion will in fact be followed, and also whether they even should be.

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