FRAND in the system of overcoming unfair competition

Abstract

The risks and abuses related to licensing standard-essential patents (SEPs) on fair, reasonable, and non-discriminatory (FRAND) terms have been studied. The main focus is on analyzing practices such as patent hold-up (abuse of the exclusive right of the SEP holder), patent ambush (concealed patenting with an attempt of gaining benefits after standar­dization), royalty stacking, and hold-out (the refusal of a licensee to conclude an agreement). The judicial and regulatory practices of the EU and the USA have been analyzed, showing that non-compliance with FRAND commitments leads to market monopol­ization, hinders the implementation of innovations, and creates barriers to fair competition. It has been proven that effective application of the FRAND mechanism is a key tool in countering the abuses of SEP holders. A special emphasis is placed on the Ukrainian context: it is noted that there is a lack of specific regulation of SEP/FRAND, which creates potential risks for the development of the telecom­munications and technology sectors. The directions for improving legislation taking into account foreign experience have been proposed. The research hypo­thesis is that proper implementation of FRAND commitments is a necessary condition for reducing anticompetitive risks. The research methodology is based on formal-legal, comparative-legal, and analytical methods, using case law, regulatorʼs policies, and doctrinal sources.