{"id":11061,"date":"2026-08-31T09:20:00","date_gmt":"2026-08-31T09:20:00","guid":{"rendered":"https:\/\/www.dhenne-avocats.fr\/?p=11061"},"modified":"2026-08-31T02:51:48","modified_gmt":"2026-08-31T02:51:48","slug":"frand-question-prealable-brevets-essentiels","status":"publish","type":"post","link":"https:\/\/www.dhenne-avocats.fr\/en\/frand-question-prealable-brevets-essentiels\/","title":{"rendered":"FRAND licence: the prior question for standard essential patents"},"content":{"rendered":"

Litigation over standard essential patents<\/a> has settled into an accounting routine. Parties argue about royalty rates, comparable licences, top-down<\/a>approaches and territorial scope. Those questions are real, but they come second. Before asking what a FRAND license<\/a>is worth, one must ask what the FRAND undertaking is, whom it binds, and to what.<\/p>\n

That prior question is anything but academic. Its answer determines who holds the obligation, which courts have jurisdiction, which remedies are available and what conduct the parties owe each other during negotiation. FRAND is not a number: it is a legally structured framework of conduct, of which the figure is merely the outcome.<\/p>\n

Taking the question in that order also restores the natural hierarchy of the dispute: characterisation first, method second, valuation last. Most of the current deadlocks in SEP litigation stem from inverting that sequence.<\/p>\n

The standard is not the undertaking<\/h2>\n

Standardization operates on three distinct normative levels, which practice too often conflates. The first is the technical standard itself: it solves a coordination problem and, in doing so, creates structural market dependence. The second is the institutional framework of the standard-setting organisation: the intellectual property policy ofETSI<\/a> organises expectations of accessibility. The third is the FRAND undertaking itself, extended downstream by the bilateral licence.<\/p>\n

The technical standard creates market dependence; it does not, by itself, create a right to a licence. The organisation's policy organises expectations; it is not the downstream licence. It is the FRAND undertaking, and it alone, that turns a legitimate expectation into an enforceable obligation. Keeping these three levels apart avoids the conceptual confusion that plagues much of contemporary litigation.<\/p>\n

A contractual source, beyond competition law<\/h2>\n

Since the Court of Justice's judgment in Huawei v ZTE (16 July 2015, Case C-170\/13)<\/a>, the reflex has been to reason in competition law terms: abuse of dominance disciplines the patentee's claim for an injunction and imposes a negotiation sequence (notice, willingness to take a licence, offer, counter-offer, security). That framework is useful, but it does not answer the question of source: where does the private law right to demand a licence come from? Patent law, a regime of exclusivity, does not explain it either.<\/p>\n

The source is contractual. Clause 6.1 of the ETSI Intellectual Property Rights Policy<\/a> is governed by French law, and the undertaking it records is analysed as a stipulation pour autrui, a third-party beneficiary contract under Articles 1205 et seq. of the French Civil Code. The standard-setting organisation receives the patentee's promise; future implementers, although undetermined at the date of the undertaking, are its beneficiaries and acquire a direct right against the promisor.<\/p>\n

The undertaking is not the licence<\/h2>\n

The undertaking sits upstream: it is the commitment assumed within the institutional framework of standardization. The licence sits downstream: it is the bilateral instrument through which the undertaking will ordinarily be performed. Implementing the standard does not automatically generate a licence; it generates a direct right to demand performance of the FRAND undertaking.<\/p>\n

That distinction clarifies the court's role. When a tribunal sets FRAND terms, it does not act as a price regulator: it gives operational effect to a pre-existing obligation, determining its content without creating it. The first FRAND decision of the UPC in Panasonic v Oppo<\/a>fits within that logic, and confirms that the question now arises before the unified court as well.<\/p>\n

Substance and behaviour<\/h2>\n

The content of the undertaking unfolds along two dimensions. The substantive dimension forms a composite benchmark, not three autonomous tests:<\/p>\n