FRAND commitments include no right to a platform licence

In my recent article, Are patent pool royalty rates FRAND?, I argued that patent pool and platform rates are structurally unsuited to serve as benchmarks for bilateral FRAND licensing. That analysis focused on pricing (i.e. royalty rates) — specifically, on the risk of inferring inapplicable rates from fundamentally different licensing arrangements.

This article addresses a logically prior question now before the England and Wales (“UK”) Supreme Court in Tesla v InterDigital / Avanci: Before any court determines whether a platform licence is FRAND, does it have jurisdiction and is there any entitlement to have those terms determined in court?

That question is not merely procedural. It goes to the meaning and scope of FRAND.

The point is not that platform rates are “sub-FRAND” or otherwise deficient. On the contrary, they may be entirely FRAND within their own commercial context. The point is that FRAND operates through different processes in different licensing structures, and those processes should not be conflated.

FRAND does not necessarily include a right to a platform licence. Recognising that preserves both the integrity of the ETSI undertaking and the legitimacy of alternative licensing institutions developed by the market.

My full 5-page article can be downloaded here.