Location: Online Webinar/Faculty of Law (LG17)
Speaker: Dr Barbara Lauriat, KCL
Biography: Dr Barbara Lauriat is Frank H. Marks Intellectual Property Fellow & Visiting Associate Professor of Law at the George Washington University Law School and Senior Lecturer at the Dickson Poon School of Law, King’s College London.
Abstract: On December 6, 2021, the Department of Justice, the Patent and Trademark Office, and the National Institute of Standards and Technology issued a draft policy statement on standard-essential patents (“SEPs”). Among its recommendations, the draft statement promotes arbitration as a desirable method for resolving FRAND disputes arising from SEP licensing. These disputes often involve global licensing agreements and may include complicated issues of choice of law, competition/antitrust laws, and patent validity in many jurisdictions around the world. As some national courts begin empowering themselves to set global FRAND rates for multinational patent portfolios, international arbitration is often viewed as a less controversial alternative. With the complexity of these cases and the proliferation of anti-suit, and even anti-anti-suit, injunctions, many prominent lawyers, academics, and judges, as well as the European Parliament and the World Intellectual Property Organisation, support arbitration as an efficient, cost-effective method of resolving global FRAND disputes. This paper considers the implications, both positive and negative, of resolving global SEP licensing disputes through private international commercial arbitration, concluding that repeated arbitration of FRAND licensing disputes within the existing legal frameworks will fundamentally erode any ability to calculate FRAND rates over time, particularly in the telecommunications industry
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