FRAND ADR CASE MANAGEMENT GUIDELINES
The Munich IP Dispute Resolution Forum is dedicated to develop and promote effective methods for dispute resolution in the field of Intellectual Property. In the course of the last year we have started the discussion with three very successful events at the Max Planck Institute for Innovation and Competition. See here.
It became very clear that there is an immense interest in ADR especially for SEP related issues and FRAND-conflicts.
SEPs (standard-essential patents) claim an invention that has to be used in order to comply with a technical standard. To ensure the accessablibilty of a standard, SEP need to be licensed on reasonable terms.
FRAND licensing – licensing on fair, reasonable and non-discriminatory terms – describes that.
Determining FRAND terms and conditions is a challenging task not only for arbitrators.
Standardization Organizations frequently refuse to deal with the commercial aspects of what FRAND is. State courts have further often proven not be the ideal forum for determining respective complex and often confidential commercial details. Therefore, alternative dispute resolution (ADR) methods, such as arbitration or mediation, can be a way out of this dilemma. Also the CJEU and the European Commission refer to ADR methods as an exemplary model solution for disputes in the field of FRAND licensing.
ADR for FRAND-conflicts can resolve negotiation blackades and foster the process of innovation.
However, despite an overall willingness to use mediation or arbitration in FRAND-cases, a perceived sense of uncertainty seems to prevent wider use of ADR methods.
WIPO for example provides specialized FRAND Arbitration Rules, however in practice the arbitrators called to decide on corresponding disputes are still facing some difficulties regarding case management issues. To assists arbitrators, parties and courts, we would like to develop a set of guidelines that can be referred to in this regard.
The IPDR Workshop Series offers a platform for open and constructive discussion, where practitioners and academics can connect and eventually develop FRAND Case Management Guidelines together.
The aim is to produce user friendly and practical guidance to help make FRAND-Dispute Resolution more predictable and attainable.
Clear and balanced guidlines on how to proceed and how to consider patent holders‘ as well as implementers‘ needs and interests will create more legal certainty and reliability in the use of ADR methods in FRAND Disputes.
The FRAND ADR Case Management Guidelines are available for free.
The most recent version is 1.0. Please click here, or click the button below to download the Guidelines.