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Dr Leonard takes part in Standard Essential Patents (SEPs) – Arbitration Roundtable

Thu 9 March 2023

Old College dome

On March 6 2023, Dr. Amandine Leonard, Early Career Fellow in Intellectual Property Law, took part in an event at the London School of Economics (LSE) organised by Prof. J. Contreras (University of Utah) and Dr. M. Husovec (LSE) on Standard Essential Patents (SEPs) and the role of arbitration.

The roundtable brought together a small group of UK-based individuals with expertise in the areas of SEP/FRAND litigation and international arbitration. Participants were invited from the judiciary (current or former), academia, and the practicing bar.

The global litigation of disputes over standards-essential patents (SEPs), particularly the determination of royalties that satisfy SEP holder commitments to grant licenses on terms that are fair, reasonable and non-discriminatory (FRAND), has received significant attention from governmental regulators, the judiciary, the academy and the bar over the past decade. Perceived competition among jurisdictions to adjudicate global FRAND rates has been characterized as an international “race to the bottom” and has prompted both international trade responses and protectionist legislative proposals. As a result, there have been calls for international arbitration to resolve global FRAND rate disputes.

The international arbitration of SEP and FRAND disputes has been available for years through various tribunals, some of which have established special rules for these disputes. Yet comparatively few FRAND disputes are known to have been resolved through formal arbitration, and costly multi-jurisdictional litigation continues to expand to new venues with no clear end in sight.

The roundtable was intended to serve as an open forum for the mapping of practical, concrete steps that can be taken in the near term to encourage the arbitration of FRAND disputes, either bilaterally (as currently done) or through multilateral “rate setting” procedures. Additional key elements such as the preferred tribunal(s) for such cases, the appropriate composition of arbitral boards, the confidentiality of proceedings and decisions, the precedential effect of decisions on judicial proceedings involving the same standards/SEPs, and the funding of such proceedings were also considered.