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Editorial

NONDISCRIMINATION IN 5G STANDARDS

November 2018 - Corporate & Commercial. Legal Developments by Yigal Arnon & Co.

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Nondiscrimination has been the neglected stepchild of the FRAND commitment. Patent owners participating in standards organizations typically commit to license their technology on “fair, reasonable, and nondiscriminatory (“FRAND”) terms.”

  1. While a number of cases have provided extensive consideration of the first “fair and reasonable” part of FRAND, until recently, U.S. decisions provided only meager analysis of the second “non-discrimination” prong.
  2. The recent TCL decision3 in the United States and the Unwired Planet decision
  3. in the United Kingdom provide significant new guidance concerning the FRAND nondiscrimination requirement. Unfortunately, advancing 5G technology will bring new difficulties in applying that requirement, and neither decision will assist in addressing these coming complexities.

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