Last month, we briefly discussed an article that proposed that “baseball-style” arbitration be used to resolve FRAND licensing disputes. The following guest post about this article was authored by David Balto, a former Policy Director of the Bureau of Competition for the Federal Trade Commission who currently has his own public interest antitrust practice here in Washington, DC. David’s views expressed below are his own, and do not necessarily reflect the views of the authors of The Essential Patent Blog, Dow Lohnes PLLC, or Dow Lohnes’s clients.
Baseball has the Best Rules: Using Arbitration to Solve FRAND Disputes
How to calculate Fair, Reasonable and Nondiscriminatory (FRAND) royalties seems like one of the most intractable problems firms, standard setting organizations and the courts are grappling with. No wonder, there is sparse authority and relatively few litigated cases.
Two of the most thoughtful scholars on antitrust intellectual property issues — Professors Mark Lemley and Carl Shapiro — have weighed in and issued a paper outlining an interesting solution to the FRAND licensing problem and it provides a clarion call for how to grapple with the problem.