Document Type

Article

Publication Date

Fall 2024

Abstract

his Article offers a systematic examination of jurisdictional competition on standard-essential patents (“SEPs”). SEPs are patents essential to technology standards developed by standard-setting organizations (“SSOs”). To reduce potential patent holdup, SSOs generally require SEP holders to commit to licensing SEPs on “fair, reasonable, and nondiscriminatory” (“FRAND”) terms. During the last decade, jurisdictions around the world have been engaged in fierce competition to set the ground rules on FRAND and other requirements for SEP licensing. This Article traces the legal landscape of this jurisdictional competition and examines how three major jurisdictions, the United States, Europe, and China, have developed divergent stances towards the most important legal issues affecting SEP licensing under patent law, contract law, and antitrust law.

This Article further challenges the prevailing scholarly assumption that jurisdictional competition on SEPs is socially undesirable. Drawing upon a historical analogy from maritime law in the post-industrial revolution era, this Article argues that jurisdictional competition on SEPs plays a positive role in facilitating compromises between innovator interests and implementer interests. Viewed in this light, jurisdictional competition on SEPs enhances social welfare by producing a “race to the middle” in which competing societal interests are calibrated and balanced.

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