The FRAND Commitment and Courts That Just Don’t Get It
- Marta Beckwith
- 6h
- 5 min read
The European Telecommunications Standards Institute (“ETSI”) requires each SEP owner to agree to give an “irrevocable undertaking in writing that it is prepared to grant irrevocable licences on fair, reasonable and non-discriminatory (“FRAND”) terms and conditions . . .” If a SEP owner refuses, the committee, in consultation with the ETSI Secretariat, is empowered to stop work on the applicable section of the standard.[1] Similarly, in the Institute of Electrical and Electronic Engineers (“IEEE”), a “RAND” commitment means that the SEP holder has agreed that they will make available a license to their SEPs “on a worldwide basis without compensation or under Reasonable Rates, with other reasonable terms and conditions that are demonstrably free of any unfair discrimination to make, have made, use, sell, offer to sell, or import any Compliant Implementation that practices the Essential Patent Claims for use in conforming with the IEEE Standard.”[2]
In other words, by making a FRAND commitment, a SEP holder commits to licensing its standard essential patents on fair, reasonable and non-discriminatory terms to anyone implementing the standard. Let me say it again, the FRAND commitment means that the SEP holder has agreed to license any company that is making infringing products and wants a license. And the license must be on terms that are FAIR, REASONABLE AND NON-DISCRIMINATORY.
That is why the recent decisions from the German national courts and the German version of the Unified Patent Court (collectively, the “German Courts”) forbidding Amazon from pursuing an interim license in the U.K. courts is both perverse and unreasonable.[3] For years, the German Courts (first the national courts and now the German version of the UPC) have been willfully blind to the difference between “regular” patents and FRAND committed ones. They have window-dressed their refusal to enforce the FRAND commitment by paying lip service to the concept of willing licensors and willing licensees. That concept has been a charade: as I reported in my recent post, Transparency, Transparency, Transparency, the judges from the German Courts could not come up with a single example in which a SEP holder was found to be an unwilling licensor. And these more recent decisions emphasize even more just how little value and meaning the FRAND commitment has for the German Courts.
In contrast, the U.K. Courts have determined that they have authority, and the means (e.g. discovery), to examine FRAND claims and make a determination on the value of a FRAND license. In this specific instance, Amazon had requested the U.K. court to make such a determination.
This makes Amazon a willing licensee: Amazon is seeking to obtain a license on fair, reasonable and non-discriminatory terms. Interdigital has committed to license its SEPs on such FRAND terms. The only holdup is that Amazon and Interdigital disagree on the value of that license. This type of disagreement, not “willingness” or “unwillingness,” is nearly universally the main reason why SEP holders and potential licensees fail to reach agreement on a SEP license (which I discuss in my post Licensing in the Real World - Secrecy vs Transparency).
Given these circumstances, the German Courts’ decision to stop the parties from moving forward with a FRAND license (interim or otherwise) is shocking. It is even more astounding in view of the German Courts’ acknowledgement (as I previously reported in the post cited above) that they are not equipped, and do not attempt, to make a determination of any kind about what constitutes a FRAND rate or a FRAND license.
The U.K. Court is having none of this,[4] and neither should the German high courts. It is way past time for the higher courts and, if needed, the German and EC governments, to rein in the German Courts’ clear abuse of injunctions in the context of FRAND committed SEPs. The only reason to deny Amazon an interim license is so that the German Courts can issue an injunction against Amazon. This should not happen: Germany changed its standards for issuing injunctions several years ago, but the German courts seem to have completely disregarded those legal changes as well as completely disregarding the SEP holders’ legally binding FRAND commitment.
To make matters worse, the EU previously sued China over an anti-suit injunction when a Chinese court issued an anti-suit injunction preventing a SEP holder from seeking an injunction in Germany.[5] How hypocritical of the EU to seek to prevent China, which like the U.K., was merely seeking to determine FRAND rates and FRAND licenses for FRAND committed SEPs, from issuing anti-suit injunctions while at the same time allowing the German Courts to prevent parties from obtaining a FRAND license (interim or otherwise) by issuing anti-suit injunctions. The EU should be policing its own before it seeks to police others.
In this particular matter, Interdigital made a commitment to license all implementers on fair reasonable and non-discriminatory terms. The U.K. Court is merely seeking to enforce that commitment. There is no rational basis for the German Courts to try to stop them from doing so in this, or any other matter, particularly when the German Courts are unable, and unwilling, to make that determination themselves.
While we can argue whether and to what extent courts in any jurisdiction should seek to determine worldwide FRAND rates and worldwide license terms, I hope that we can all agree that, when a FRAND commitment has been made, the appropriate remedy is not an order from a court stopping an implementer who is willing to take a license but unwilling to pay a price it considers unreasonable from using the standard. The appropriate remedy is a determination of what is a fair reasonable and non-discriminatory rate so the parties can thereby reach agreement on a FRAND license.
[2] IEEE SA - Standards Board Bylaws – Clauses 6 – 8. Note that most commentators equate the RAND and FRAND commitments and I will use the more common terminology FRAND in this post.
[3] The decisions were made in the following matters: InterDigital VC Holdings, Inc. v. Amazon.com, Inc., UPC_CFI_936/2025 (L.D. Mannheim Sept. 30, 2025), and InterDigital VC Holdings, Inc. v. Amazon.com, Inc., Judgment of the Munich Regional Court, Case No. 21 O 12112/25 (Sept. 26, 2025, as amended). See a discussion of the decisions here: Comparative Patent Remedies : The UPC and Munich Anti-Interim License Injunctions and Anti-Interim-License Injunctions and the Erosion of Contract Rights | Kluwer Patent Blog.