Many of my consulting projects over the last few years have related to FRAND (fair, reasonable and non-discriminatory) licensing obligations. The purpose of FRAND licensing commitments is to ensure access to intellectual property. It also protects third parties against overcharging and other abusive behavior.
I've written about FRAND issues before. In July I explained the basics of FRAND.
Call for input for a new study
I am working on a study on the worldwide use of FRAND-pledged standards-essential patents in litigation and licensing. In particular, I am looking into
the injunctive and/or monetary relief requested based on the alleged infringement of FRAND standard patents,
indications of the demands patent holders made in pre-lawsuit negotiations,
attempts to leverage such patents in order to receive licenses to unencumbered patents by insisting on a cross-license or by demanding unreasonably high royalty rates for a one-way license,
the time it takes until patent holders make an offer of FRAND terms when requested,
court rulings and reasonings (including early-stage decisions, for example, on motions to dismiss), and
antitrust complaints and investigations triggered by suspicions of FRAND abuse.
If you have information that may be pertinent to this research effort, please contact me via this form. I won't mention you to anyone or share your contact data.
I have been able to track down the most important U.S. lawsuits (and ITC investigations) relating to FRAND-committed patents and EU antitrust investigations involving such patents. I have also found out details about Samsung's assertions against Apple in Australia and the Netherlands. However, in most jurisdictions it's very difficult to get access to pleadings and decisions. That's why I would appreciate help from this blog's global audience (while 50% of my readers are residents of North America, 32% are in Europe and 11% in Asia).
Microsoft has commissioned this study. I will present my findings next year in a published report.
The industry at large relies and depends on FRAND commitments. So does Microsoft, which owns a significant number of standards-essential patents but licenses many more of them from other right holders. Given the strength of Microsoft's patent portfolio and the large scale of its inbound and outbound licensing activities, I am proud that they are interested in my analysis of, and perspective on, the related issues.
Microsoft and I agree on some issues and disagree on others. We were on opposing sides of the debate over a European patent bill years ago. We still have different positions on patent-eligible subject matter. But we do see eye to eye on the post-grant use of patents, i.e., how patents are and should be used after they have been issued, and on some related matters. I like the fact that Microsoft appreciates and respects a diversity of opinions, a fact that has enabled us to work together not only on this FRAND research project but also on a couple of other recent issues facing the industry.
Focus on FRAND
FRAND is one of my specialty areas. Prior to this project, 17 different companies in the financial services industry have hired me for advice in connection with transactions involving FRAND-committed patents to some degree. My work in that field was recently mentioned in the Wall Street Journal. I wish I could name all of my clients because they include some well-known investment banks. For an example, I had a conference call on September 9, 2011 with a large number of clients of a major European bank with a strong global presence. But in that particular industry, confidentiality comes first, and I respect that.
Not all of my clients ask me about FRAND. For instance, I recently contributed to a study on global patent strategies. And my first FRAND-related project ever had nothing to do with patents: on behalf of soccer club Real Madrid, I authored a 42-page paper on the obligation of sports bodies to grant FRAND licenses to teams participating in their tournaments and its relevance to broadcasting and other commercial rights.
"Freemium" business model
Most of the time I keep my consulting work separate from this blog, but in this case I felt that this is the right platform for a call for input.
I basically have a "freemium" ("free" + "premium") business model. If you read my blog, access is free. If you read statements I give to the media (proactively or in interviews), they are free to them, too. The premium part comes into play whenever I deal with professionals who ask for highly individualized explanations and for analysis that goes into greater depth.
I was involved in different roles with MySQL AB, an open source database company, from 2001 until its sale to Sun Microsystems in 2008. They were happy with converting one out of 1,000 non-paying MySQL users into a paying customer. Freemium worked for them then. It works for me now.
Prior to this blog, I also had consulting engagements. To give three examples, I helped MySQL founder Monty Widenius oppose Oracle's acquisition of MySQL as part of Sun in late 2009 and early 2010. I mentioned my work for a soccer club. I also received support from various companies for a campaign against software patents. But in between those projects I worked on other endeavors and "disappeared" from public debates. My blog provides me with a continuous presence, and I now have a much broader client base.
Projects range from short consultations on one topic to more extensive, or repeated, engagements.
All those clients are independent from each other, and I have enough of them to be independent from them. Each of them can expect honest answers and independent, relentless analysis from me. None of them controls my blogging and my public statements: my blog is my personal platform on which I express, exclusively, my own heartfelt convictions.
I now look forward to this FRAND-related research project and thank everyone in advance for their input.
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