paheka,
Below is taken from Ayne testimony. If you read it carefully, he omits one very important fact. Under what circumstances is the patent owner required to offer Frand rates?
Is it the mere participation in the ETSI?
I say no.
It is both the participation in the ETSI and the adoption of the ETSI of the patent in the standard. And only the courts can decide whether the patent is essential.
mo
The conclusion of license
agreements is always the result of a voluntary commitment on the part of the IPR
owner. Members must inform ETSI of the existence of ESSENTIAL IPRs, "in a
timely fashion" (article 4.1, "Disclosure ofIPR's"). From this, either:
- The IPR owner "give[s] .... an undertaking in writing that it is prepared to grant
irrevocable licences on fair, reasonable and non-discriminatory terms and
conditions ... to at least the following extent: ... " (art. 6.1.) Therefore, the
licences become "available" (article 6 : "Availability of licences");
- Or the IPR owner refuses to grant the licence: which constitutes a "nonavailability
of licences" (article 8)
Therefore, it is pointless to invoke the mechanism of a mandatory license and its
exceptional character under European law (Calvet, p.ll & 12). No member of
ETSI is under the obligation give an "undertaking in writing" pursuant to article
6.1. Any member may refuse to grant a licence. However,
(A) Any member of ETSI must make a choice sufficiently early, to allow the
pr~gression or abandonment of the process of a STANDARD creation;
(B) Once it has chosen to submit the "undertaking in writing" pursuant to
article 6.1, it evidently cannot retract under the pretence that it is unable
to come to an agreement with such or such manufacturer on the price.
The ESTI mechanism is incompatible with a right of IPR owners to
decide to conclude or to not conclude a licence after individual
negotiations; it would mean that the possibility for the manufacturer who
has been refused a licence to implement the standard, and consequently,
to remain present on the market, would in turn depend on the good will of
the IPR owner (an abusive refusal to contract is only sanctioned by
damages under French law, as recognised by M. Calvet). On the contrary,
the ETSI and the availability collective mechanism via the undertaking
pursuant to article 6.1 - which is never mandatory - allows the adoption
of a STANDARD accessible to all manufacturers without discrimination.
1.3.2 It is true, as stated in article 4.1 of the ETSI GUIDE, that the specific terms of the
licences and the negotiations are "commercial issues", outside the scope of ETSI.
It goes without saying that the FRAND terms and conditions should be clarified
and that this will be at the centre of commercial negotiations between the parties.
However, this does not mean that the license is not obtained befo..re these
negotiations have been concluded: it is common that a contract is concluded, and
that afterwards, the price is negotiated or is fixed by some other method. Since
1995, this is the rule under French law (v. infra).
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