The objective of the Association is to promote globally, but primarily in the European Union and its Member States, certain key principles relating to the licensing of FRAND-encumbered Standard Essential Patents (SEPs).
The Key Principles are:
Fair, Reasonable and Non-discriminatory to All
Holders of FRAND-encumbered SEPs must offer licenses for such SEPs on fair and reasonable and non-discriminatory terms to all companies, organizations, and individuals who implement, or wish to implement, the relevant Standard, in accordance with the terms of the applicable policy of the relevant standards setting body. This must include offering licenses to entities that implement, or wish to implement, portions of the Standard for use in Standard-conforming implementations;
Injunctions Available Only in Limited Circumstances
A holder of a FRAND-encumbered SEP must not be allowed to seek or enforce an injunction or other exclusionary remedies in relation to that SEP except in limited circumstances;
Transparency in FRAND-encumbered SEP licensing should be encouraged to create greater predictability and avoid discrimination, benefiting both industry and end-users;
FRAND Commitment Follows If FRAND-encumbered SEPs Transferred
If a FRAND-encumbered SEP is transferred, the FRAND commitment must follow the SEP in such transfer and in all subsequent transfers; the initial transferee and all subsequent transferees must remain bound by the FRAND commitment;
No Patent Tying
A holder of a FRAND-encumbered SEP may not, as a condition of granting a FRAND license to the SEP, require implementers to (a) take licenses to Patents that are not valid or not infringed, or not Essential to the Standard; or (b) grant a license to implementer’s Patents that are not Essential to the Standard;
FRAND Royalties Should Reflect Many Factors
A reasonable rate for a valid, infringed and enforceable FRAND-encumbered SEP should be based on several factors. These factors should include assessing the value of the patented invention apart from its inclusion in the standard, and apart from its combination with other technologies not claimed in the patent. Royalty rates should also take into account the smallest unit implementing the SEP, as well as royalty stacking.
Download our position paper outlining the FSA’s Key Principles for FRAND licensing