The Use of Arbitration in FRAND Disputes

Author: Guillaume AREOU et Christophe ARFAN

Type: Article

ref: 32021327-351

N0:3 of 2021

Pages: 327-351

The term "FRAND" (for Fair, Reasonable, And Non-Discriminatory) falls within the field of essential patents (or "SEP" for Standard-Essential Patent). A patent is considered essential when it is declared by its owner as essential to the implementation of a technical standard, such as 2G (GPRS) / 3G (UMTS) / 4G (LTE) / 5G, video coding (including MPEG, AVC, HEVC ...), Bluetooth technology or Wi-Fi. Such a declaration entails an "undertaking" for the patentee to grant licenses on FRAND terms to implementers of the standard. Widely used in the telecom sector, essential patents are now extending to multiple sectors due to the very varied application of technologies, and in particular the emergence of the internet of things (“IoT”). The competitive pressure between the various stakeholders and the financial stakes explain why litigation relating to essential patents is developing against a background that is at once economic, technological and globalised.