FRAND Case management guidelines

The Munich IP Dispute Resolution Forum is dedicated to develop and promote effective methods for dispute resolution in the field of Intellectual Property. In the course of the last year we have started the discussion with three very successful events at the Max Planck Institute for Innovation and Competition. See here. It became very clear that there is an immense interest in ADR especially for SEP related issues and FRAND-conflicts.

SEPs (standard-essential patents) claim an invention that has to be used in order to comply with a technical standard. To ensure the accessablibilty of a standard, SEP need to be licensed on reasonable terms.
FRAND licensing – licensing on fair, reasonable and non-discriminatory terms – describes that.
Determining FRAND terms and conditions is a challenging task not only for arbitrators. Standardization Organizations frequently refuse to deal with the commercial aspects of what FRAND is. State courts have further often proven not be the ideal forum for determining respective complex and often confidential commercial details. Therefore, alternative dispute resolution (ADR) methods, such as arbitration or mediation, can be a way out of this dilemma. Also the CJEU and the European Commission refer to ADR methods as an exemplary model solution for disputes in the field of FRAND licensing.

ADR for FRAND-conflicts can resolve negotiation blockades and foster the process of innovation.

However, despite an overall willingness to use mediation or arbitration in FRAND-cases, a perceived sense of uncertainty seems to prevent wider use of ADR methods. In particular, the arbitrators called to decide on FRAND-disputes are still facing some difficulties regarding case management issues. To assists arbitrators, parties and courts, we have started to develop a set of guidelines that can be referred to in this regard. The aim was to produce user friendly and practical guidance to help make FRAND-Dispute Resolution more predictable and attainable. Clear and balanced guidelines on how to proceed and how to consider patent holders‘ as well as implementers‘ needs and interests will create more legal certainty and reliability in the use of ADR methods in FRAND Disputes.

With the IPDR Workshop Series we could offer a platform for open and constructive discussion, where practitioners and academics came together for open discussion. Over the course of a year various workshops were held in London, Helsinki, Geneve and Munich. We were very fortunate to get ideas and input from our Advisory Board, the WIPO Arbitration and Mediation Centre, ETSI´s legal department, industry stakeholders, academia and experienced neutrals and judges.

The result of that process – the FRAND ADR Case Management Guidelines – were first presented on 10 November 2017 at the WIPO Workshop on ADR for FRAND Disputes and very well received by the attendees.

The FRAND ADR Case Management Guidelines are available for free.
The most recent version is 1.0. Please 
click here, or click the button below to download the Guidelines.