Intellectual property agenda: the FRAND (fair, reasonable and non-discriminatory) debate — is the tide turning?

By Osman Zafar

The outspoken Federal Trade Commission (FTC) commissioner, Joshua D Wright, recently made a speech where he spoke out against the FTC’s ‘new IP agenda’ and its opposition to the availability of injunctive relief for standard essential patent (SEP) holders. Wright states that the FTC now appears to view merely seeking an injunction in respect of an SEP as anti-competitive and against the public interest (he cites the FTC’s actions in Bosch and Motorola). He suggests that the FTC’s approach is a departure from the long-established ‘symmetry principle’, i.e. that the application of antitrust law to IPRs should be in parity with the approach to real property, and that it is not necessary to have a different analytical framework or special rules to enforce the antitrust laws in order to promote consumer welfare.

‘IPRs, like other property rights, play a critical role in a property rights regime focused on voluntary commercial exchange and competition. Linking the antitrust analysis of IPRs to the already well-developed toolkit available to analyse the economics of business arrangements involving real property rights encourages methodological consistency and analytical rigor in identifying the appropriate limits on the exercise of IPRs.’ …

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