SEP/FRAND Disputes: Arbitration Or Litigation?

Disputes as to the licensing of standard-essential patents (SEP) and determination of fair, reasonable and non-discriminatory (FRAND) terms are typically resolved through either negotiation or litigation in national courts. However, international arbitration is increasingly being used as an alternative to litigation, a trend endorsed in recent statements by both the U.S. Patent and Trademark Office and the U.K. Government.

Depending on the circumstances, arbitration may have significant advantages – for example, it may reduce the likelihood of parallel proceedings in multiple jurisdictions and of extensive discovery, and may increase the likelihood of a suitably neutral and expert tribunal and of a swifter and cheaper route to a final determination. Equally, there may be benefits in referring some issues to arbitration and others to litigation (e.g. parties might agree to arbitrate disputes about whether the relevant technology is covered by SEPs and/or what the FRAND