5G, 'FRAND' And The IPR Regime

Author:Ms Maahi Mayuri
Profession:Khurana and Khurana

Recently in 2018, the Court of Appeal Judgement (UK) in Unwired Planet v Huawei Court of Appeal brought down various highlights regarding patent licensing further reflecting that it is truly complex in nature. The judgment further threw light on the necessity of negotiating intellectual property licencing in sectors such as technology and telecom in a flexible, transparent and a level playing field.

The judgment only fulfilled the much anticipated predictions of turning of tables further redefining the powers of various Multinational Corporations. The case settled that worldwide licensing rates would only be fair, reasonable as well non-discriminatory i.e., "FRAND" considering in mind the complex, expensive and time consuming negotiations of multiple patent licenses in the virtual world. Traditionally, power in the hands of licensee has always given them an upper hand irrespective of where they stand financially. These types of parties are in the position of either hindering or stalling negotiations (holding up) or not obtaining a patent license at all. While obtaining a licence in a "FRAND" i.e., fair, reasonable and non-discriminatory manner as discussed above is not only efficient as well as fair in consideration of their efforts but also allows them to obtain to the core, the full benefit of their technologies.

The much anticipated 5G technology is expected to play the role of a much needed catalyst supporting various innovations having far reaching impacts on several sectors such as healthcare, automotive, research, defense, manufacturing as well as many more sectors vital to any economy. Recognising the 5G R&D fairly will be an essentially critical step in the new era with businesses becoming responsible to appreciate the complexities of the IP regime so as to obtain benefits to the maximum.

How we could re-balance power using the "FRAND" i.e., Fair, Reasonable and Non Discriminatory Method?

It is proposed that various negotiations relating to Intellectual Property need to be governed using the fair, reasonable and non-discriminatory, i.e., "FRAND" terms. Referring to various well defined benchmarks will not only encourage dialogue, offers and counter offers, open as well as amicable negotiations but would also reduce litigation to a minimum.

But it would be wrong to be optimistic in the first instance considering in mind the Apple v. Qualcomm battle which only further shows the convoluted as well as the ever-so-expensive nature of...

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