Rarely must patent infringers demand their right to pay
royalties. But several multinational manufacturers have gone to
court to insist that they – and not other participants in the
supply chain – make payment of any patent royalties. From a
contractual perspective, judicial analysis of such claims has
focused on the non-discrimination prong of the fair, reasonable,
and non-discriminatory ("FRAND") patent licensing
commitment. In other words, some manufacturers have argued, and
some courts and administrative agencies have agreed, that a
patentee's refusal to provide FRAND licenses at all levels of
the supply chain constitutes discrimination and, as such, violates
the patentee's contractual obligation to license their patents
in a nondiscriminatory manner.1 This Essay argues that
such claims are misplaced – the principle of
nondiscrimination provides no easy framework for analyzing such
selective licensing of the supply chain. Rather, such questions
must be examined
