Техникалық стандарттардағы патенттер және FRAND шарттары

Patenting methodology intended to produce a technical standard

Reasonable and non discriminatory (RAND) terms, also known as fair, reasonable, and non discriminatory (FRAND) terms, denote a voluntary licensing commitment that standards organizations often request from the owner of an intellectual property right (usually a patent) that is, or may become, essential to practice a technical standard. Put differently, a F/RAND commitment is a voluntary agreement between the standard setting organization and the holder of standard essential patents. U. S. courts, as well as courts in other jurisdictions, have found that, in appropriate circumstances, the implementer of a standard—that is, a firm or entity that uses a standard to render a service or manufacture a product—is an intended third party beneficiary of the FRAND agreement, and, as such, is entitled to certain rights conferred by that agreement. A standard setting organization is an industry group that sets common standards for its particular industry to ensure compatibility and interoperability of devices manufactured by different companies. A patent becomes standard essential when a standard setting organization sets a standard that adopts the technology that the patent covers. Because a patent, under most countries' legal regimes, grants its owner an exclusive right to exclude others from making, using, selling, or importing the invention, a standard setting organization generally must obtain permission from the patent holder to include a patented technology in its standard. So, it will often request that a patent holder clarify its willingness to offer to license its standard essential patents on FRAND terms. If the patent holder refuses upon request to license a patent that has become essential to a standard, then the standard setting organization must exclude that technology. When viewed in this light, the FRAND commitment serves to harmonize the private interests of patent holders and the public interests of standard setting organizations. Many scholars have written about these topics, as well as a variety of other legal and economic issues concerning licensing on F/RAND terms.

Standard setting organizations commonly adopt policies that govern the ownership of patent rights that apply to the standards they adopt (the patent policy). In the United States, the patent holder's agreement to adhere by the patent policy creates a legally binding contract, as the Court of Appeals for the Ninth Circuit ruled in Microsoft v. Motorola. One of the most common policies is to require a patent holder that voluntarily agrees to include its patented technology in the standard to license that technology on "reasonable and non discriminatory terms" (RAND) or on "fair, reasonable, and non discriminatory terms" (FRAND). The two terms are generally interchangeable; FRAND seems to be preferred in Europe and RAND in the U. S. Without such commitment, members could use monopoly power inherent in a standard to impose unfair, unreasonable and discriminatory licensing terms that would damage competition and inflate their own relative position. On the other hand, commentators stress that the FRAND commitment also serves to ensure that the holder of a patent that becomes essential to the standard will receive royalties from users of the standard that adequately compensate the patent holder for the incremental value that its technology contributes to the standard. The development of a patented technology typically requires significant investment in research, and contributing that technology to a standard is not the only option by which a patent holder can recoup that investment and thus monetize its invention. For example, a patent holder has the option to monetize that invention through exclusive use or exclusive licensing. Technology owners might have insufficient incentives to contribute their technologies to a standard setting organization without the promise of an adequate royalty. The promise of a F/RAND royalty address that problem: the patent holder will typically agree to contribute its technology to the standard, thus forgoing the exclusive use or the exclusive licensing of its technology, in exchange for the assurance that it will receive adequate compensation in reasonable royalties. In 2013, court decisions and scholarly articles cited FRAND commitments 10 times more often than in 2003.

RAND terms exclude intangible goods which the producer may decide to distribute at no cost and where third parties may make further copies. Take for example a software package that is distributed at no cost and to which the developer wants to add support for a video format which requires a patent licence. If there is a licence which requires a tiny per copy fee, the software project will not be able to avail of the licence. The licence may be called "(F)RAND", but the modalities discriminate against a whole category of intangible goods such as free software and freeware. This form of discrimination can be similarly caused by common licence terms such as only applying to complete implementations of the licensed standard, limiting use to particular fields, or restricting redistribution. The Free Software Foundation suggests the term "uniform fee only" (UFO) to reflect that such "(F)RAND" licenses are inherently discriminatory.

Related to RAND licenses are RAND Z (RAND with zero royalty) or RAND RF (RAND Royalty Free) licensing, in which a company promises to license the technology at no charge, but implementers still have to get the licenser's permission to implement. The licenser may not make money off the deal but can still stop some type of products or require some type of reciprocity or do more subtle things like drag out the licensing process.

The negotiating process for FRAND licenses places requirements on the patent owner and the envisioned patentee. The terms for these negotiations were set in German case law in a case regarding the Orange Book Standard, and these terms are often used in licensing negotiations. In 2015, the European Court of Justice interpreted FRAND licensing terms in case Huawei v ZTE (C170/13, significantly diverging from the Orange Book Standard.