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les Nouvelles August 2020 Article of the Month:
Non-Discrimination Under FRAND Commitment:
One Size Fits All, Or Does Not Fit At All?

The Example Of Wireless Technology: IoT And 5G

Ruben Cano PerezRuben Cano Perez, LLM

Baker McKenzie and AI Responsible at CyberLaws,
IP/ICT Lawyer,
Madrid, Spain

Abstract

This paper discusses the "Non-Discriminatory" limb of FRAND in the standard development context. Initiatives, such as Avanci, or comparable licensing practices in the music sector, will be presented. The discussion will focus on the Internet of Things and 5G technology markets, assessing the importance of standardised technology, and potential reasons for competition law to be on alert.

I. How Consumers Will Benefit From IoT And 5G Connectivity

Cellular technology significantly increases consumer welfare, in particular when it comes to the Internet of Things (IoT) and the wireless telecommunications technology standard of the fifth generation (5G).1 In the IoT, devices are connected via the Internet, exchanging vast amounts of data through communication networks.2 It is estimated that cellular technologies for the IoT will connect 99 percent of devices located deep indoors by 2022.3 The IoT will drastically change our lives, being applied in multiple areas such as healthcare and wellness, living environments, buildings, energy, farming and food security, wearables, cities, mobility, environment and manufacturing. Possible use cases include the following applications: (i) instantaneous health monitoring; (ii) mobile applications providing customized activities; (iii) intelligent building management systems (BMS);4 (iv) smart city lighting; (v) self-driving cars; and (vi) applications addressing real-time earthquake risk.5

Most of these use cases need a network providing high data throughput, broad coverage and low latency, which is possible thanks to cellular standards. A standard is a set of rules or guidelines agreed by stakeholders to make products or services able to "talk" to each other.6 Each standard generation provides improvements vis-à-vis the former generation. The success of technological development via standardisation constantly adapting or even foreseeing human needs is huge. Statistics show that by 2022 there will be more than half a billion 5G subscriptions; worldwide mobile subscriptions will increase from 7.5 billion in 2016 to 9 billion; and the worldwide data traffic per person will increase from 2.1 GB to 12 GB, which will offer incredible opportunities for new businesses and significantly increase consumer welfare.7

In this ecosystem, European authorities aim to create a market where new interconnected sectors will flourish, in particular, small and medium-sized enterprises (SMEs), which represent 99 percent of businesses in the European Union.8 Accordingly, the European Commission has repeatedly recognised the key role of standardisation to reach a competitive Digital Single Market (DSM) by 2020.9 Technologies integrated into a standard could be protected by patents. Despite the pro-competitive effects of standardisation (high-performance interoperable solutions, progressively lower consumer prices, increased innovation, no market entrance limitations, etc.), the fact that the same standardised technology protected by a patent is licensed under different condition may, in principle, raise antitrust concerns.

This paper will analyse the views of courts, scholars, Standard Development Organisations (SDOs), and competition authorities on price discrimination within the standardisation context. Besides the information and communication technology (ICT) industry, the paper will also take a brief look at current practices in other sectors.

II. Setting The Context: The Role Of Standardisation In Achieving Billions Of Interconnected Devices

A. Standardisation Process: The Complex Development of 3G, 4G and Upcoming Standards

According to the European Commission, a successful product or service in the ICT market requires interoperability, performance, reliability and security, all which can be achieved via standardisation.10 However, to create and develop cellular standards massive research and development (R&D) investments are needed. For example, more than 320 companies and 43 countries participated in the development of the 4G standard, that lasted nine years.11
In the standardisation process, companies contribute their technologies, often resulting from substantial R&D costs in order to solve diverse technical challenges. Amongst these technical contributions SDO members discuss and select, based on technical merits, the best technology to be incorporated into the standard.12 When a patent protects the selected technology integrated into a particular standard, the contributor may own a Standard Essential Patent (SEP) that will necessarily be used when implementing the standard.

B. Reason for Success: FRAND Terms and WTO Criteria

Standards allow for interoperable high performance products and services at a reasonable price.13 Thanks to standards, costs of network infrastructure per megabyte fell 95 percent from 2G to 3G, and 67 percent from 3G to 4G technologies.14Also, 4G networks permit data-transmission over 12,000 times faster than 2G networks and, with 5G, the implementation of futuristic technologies like remote surgery will soon become reality.15

The unprecedented success of standardisation has been possible mainly due to two factors. On the one hand, the standardisation process, generally, follows certain criteria established by the World Trade Organisation (WTO), such as openness, consensus, transparency and impartiality.16 On the other hand, SDO members usually commit to make their SEPs available on Fair, Reasonable and Non-Discriminatory (FRAND) terms and conditions. Both factors enable the quick dissemination of standardised products and services together with an increase of competition on the downstream market for the benefit of consumers.

The WTO principles allow equal chances for SMEs and startups versus large companies. In fact, looking at 3G and 4G contributions, Gupta shows that the likelihood of acceptance of technological contributions to a standard was even higher for SMEs and startups than for large companies.17 FRAND, on the other hand, allows for a balance between the interests of standard developers, which rely on a fair return on their investments in developing the standard, and those of the standard users, who wish to access the standardised technology under terms allowing them to compete in the market, regardless of whether they have contributed any technology to the standard or not.18

III. Non-Discriminatory Limb Of FRAND

The concrete FRAND terms and conditions are typically agreed by the parties in good faith bilateral negotiations.19 In fact, courts have recognised worldwide that FRAND is a two-way street where both SEP holders and users must behave in good faith according to their FRAND commitment.20 Nevertheless, there is no common accepted FRAND definition. According to Goldstein, "Fair" is where, in negotiations, both parties are equally considered. "Reasonable" is understood as an outcome of the negotiations that is acceptable on business terms by both parties. "Non-discriminatory" means that parties are not treated detrimentally, compared to other similarly situated market participants. This has to be determined in line with the context and particular characteristics of the case at stake.21

In the context of the IoT, the "Non-Discriminatory" limb of FRAND ("Non-Discriminatory" or "ND") becomes particularly significant. Since billions of devices from different sectors will be connected, connectivity may have a different value depending on where it is implemented–e.g. in a car or in a smart meter.

Charging different prices for the same standardised technology is not detrimental or abusive per se. Nevertheless, price discrimination may trigger different legal concerns: requesting different prices for the same SEP could be seen as (i) an abuse of dominance pursuant Article 102(c) TFEU; and (ii) a breach of the (contractual) FRAND commitment of the patent holder.

A. Purpose of the ND Limb and Approaches.

The ND limb must be understood within the context of the FRAND undertaking. FRAND seeks to achieve two main goals: (i) promote and ensure access to the standard; and (ii) guarantee that SEP holders can recoup their upfront investments and be adequately rewarded for their contribution to the standard.
Some authors suggest that the ND prong of FRAND aims at avoiding exclusion from the standard or so-called "hold-up."22 Others argue that underlying factors of discrimination are (i) the size or market power of the licensee; (ii) the licensee's SDO membership; (iii) the competition between licensee and SEP holder; and (iv) the geographical location of the licensee.23 Even though some commentators have suggested that ND means offering the same royalty rate to every user, the prevailing opinion clearly disagrees with this approach, as it would lead to economic inefficiency, decreasing economic welfare.24

Swanson and Baumol argue that the ND limb must be applied only when SEP holders are vertically integrated and compete in the downstream market.25 Albeit placing the emphasis on the potential risk of SEP holders operating downstream is appropriate, this view does not seem fully satisfactory, since it seems not to cover the case where discrimination could take place among licensees.

The most adequate approach, striking a balance between market practice and rigid theoretical approaches, seems to be understanding the ND limb as an obligation not to treat similarly situated licensees differently. In Unwired Planet v. Huawei, Justice Birss of the UK High Court of Justice concluded that "the true interpretation of the ETSI FRAND undertaking from the point of view of non-discrimination is that a benchmark FRAND rate should be derived which is applicable to all licensees seeking the same kind of licence," a finding which supports the above approach26 and does not amount to an obligation to offer the exact same rate to all potential licensees.27 Such a radical approach could be detrimental for both SDOs and implementers, taking into account which have to be the relevant terms and conditions to consider and the divergent bargaining power of different licensees.

B. What Does "Not to Treat Similarly Situated Licensees Differently" Mean?

The interpretation of "different treatment" and "similarly situated" licensees remains controversial. The requirement to "treat similarly situated licensees similarly" or "not to treat similarly situated licensees differently" can be split up in two parts.28 On the one hand, "treat similarly" could mean to offer the same terms and conditions. Put the other way around, "not to treat similarly" would occur, when SEP holders license the same technology under different prices depending on factors not directly related to the intrinsic value of the technology or the value that the technology contributes to a particular implementer.

On the other hand, "similarly situated licensees" implies the need to take into account a set of factors. The following criteria can be considered: (i) the Average Selling Price (ASPs) of the licensees" products; (ii) the solidity of the financial wherewithal and capability of the firms; (iii) their costs structure; (iv) the companies" product mix; (v) the companies" total level of sales or total number of units; and (vi) the geographical market penetration of the licensees. Criteria (i) and (v) are considered to be the more conclusive.

Besides the above, other factors that may be considered are (i) the use and valuation by a company of the SEP; (ii) the size of the portfolio and expected income of the licensee for the use of the SEP; (iii) the relevant position in the market place; (iv) the time in which the technology contained in the standard will remain valuable; or (v) whether companies are competing directly among themselves.29 Nevertheless, the above-mentioned factors do not provide a clear definition.

Carlton and Shampine offer two possible definitions of "similarly situated." On the one hand, they suggest that "competing firms are similarly situated if ex ante they expect to obtain the same incremental value from the patented technology compared to the next-best alternative technology;" and on the other hand, they argue that (ii) "to apply uniform rate assessed against a common component incorporating the patent used by all competitors, assuming that one exists that is, to define similarly situated as any firm that uses this common component even in cases where some firms derive greater value form the patent than others." Both approaches provide some clarification when it comes to identify potential differences among sectors and companies. However, the first proposal, may give rise to some problems when dealing with divergences among companies with relation to complementary goods. Likewise, the second actually does not properly capture the value that a SEP is contributing to an implementer and generates problems with patent exhaustion.30

Recently, in Unwired Planet v. Huawei, the UK Court of Appeal found that the patent holder, Unwired Planet, had not discriminated the defendant, Huawei, taking into consideration the terms and conditions of a licence that another implementer, Samsung, had concluded with Unwired Planet. The UK Court of Appeal followed the approach on non-discrimination taken by the UK High Court of Justice in the first instance of the dispute, recognising that it is appropriate to have a benchmark rate in order to offer licences to other licensees that are interested in the same or similar portfolio, but this benchmark rate must not be regarded as totally and automatically binding. Moreover, the UK Court of Appeal recognised that under certain conditions, setting different prices might be beneficial in terms of social welfare.31

The methods available today for assessing whether specific licensees are "similarly situated" do not provide a holistic evaluation. Since different licensees (even if almost identical) have their particularities, determining whether licensees are "similarly situated" would, therefore, require a case-by-case examination of "reasonableness."

i. Actors in Different Sectors of IoT: Are They Similarly Situated?
As already mentioned, 5G technology will allow multiple usages, enabling new verticals and business models. Consequently, different prices for the same technology should be, in principle, possible.32 Offering the same terms to companies that are not similarly situated would be of little help especially for SMEs, which will not be able to afford licensing conditions that capture the entire potential of the technology. Thus, there is a need to adopt our mind-set to the new licensing practices which will emerge in connection with the IoT and 5G.

ii. Are They Similarly Situated?
Especially in the IoT field, many implementers will not be similarly situated. There will be companies that will not exploit the whole potential a technology offers: licensing terms and conditions offered to such companies could (and must) differ from those offered to companies that obtain a higher benefit from the same standardised technology. Furthermore, in cases where an alternative technology will be available, the standardised technology will provide implementers with a different incremental value than in cases in which this alternative may not exist. In fact, regarding the calculation of incremental value between transactions, commentators such as Anderman and Kallaugher point out the difficulties of determining similarities between transactions, which implies to take into considering licensees' different situation.33

Imagine a remote fire sensor in the forest and an autonomous car.34 The remote sensor may need some features of the standard, but will actually never reach the performance level of an autonomous car. While a fire sensor will be fixed in some place (not moving), only transmitting signals every half an hour without needing high speed requirements, an autonomous car will be moving around, being connected all-time with different speed and security specifications. Therefore, the area of connectivity and mobility, the bandwidth need, the frequency of use, and the security needs will differ significantly between these use cases. The added value to the final product, the willingness to pay from the implementers side, or the final price of the product will also vary.

In the Unwired Planet v. Huawei case, the UK Court of Appeal confirmed that, to determine whether two transactions are equivalent, emphasis should be placed on the transactions as such, taking into consideration potential divergences between licensees' circumstances. Nevertheless, according to the Court, slightly different economic circumstances—as diverse parties" financial position or market conditions—themselves cannot lead to the conclusion that licensees are not similarly situated.35 This would evidence that not all licensees are similarly situated, and its assessment has to be carefully carried out.

iii. Avanci: Criteria for Differentiation
Different players from the IoT sector are becoming aware of the need to adapt to market and licensees' particularities and characteristics. In doing so, a new licensing platform called Avanci emerged as an alternative that enables IoT development by putting SEP holders and implementers together. In its own words, Avanci "has created the first platform for IoT manufacturers to license crucial, standard-essential wireless technologies with an emphasis on fair, transparent pricing."36 Conscious of the new challenges brought by IoT and wireless technology, this system gathers different stake-holders from robot to smart meters manufacturers and allows small players to gain access to the IoT world.

Companies with relevant portfolios in the telecommunications sector are already part of Avanci such as Ericsson, Nokia, Vodafone, Qualcomm and Sony. Avanci aims to lower transaction costs, simplify the negotiation process and provide transparency so that licensees may rest assured that they are not discriminated. Avanci implements a "flat rate royalty calculation where a fixed amount is paid for each unit produced or sold." In line with this calculation (i) "all competitors will pay an identical royalty when using the same technology (…)" and "(…) flat rate royalties vary in direct relation to the actual number of units." Another interesting point is that patents granted to licensors in the platform would be automatically included in licenses agreed. The increase of the scope of the license, will, however, not increase fix costs per device.

Avanci, finally, differentiates royalty rates depending on the applications of wireless technologies. Therefore, it seems that licensee's situation, characteristics and context will be taken into consideration to forecast the added value the cellular technology provides. This evaluation would depend on three key factors: (i) "the need for wide-area connectivity and mobility;" (ii) "the frequency of use;" and (iii) "the required bandwidth." By so doing, the approximated added value would be captured, bearing in mind that all licensees (and devices) do not harness the potential that the technology has.

iv. Even So: is Charging Differently for the Same Technology Within "Efficiencies" and "Objective Justification" Framework of Article 102 TFEU?
The existence of different prices does not necessarily mean that an infringement under Article 102 of the Treaty on the Functioning of the European Union (TFEU) has occurred. As already suggested, charging differently for the same technology to similarly situated licensees may be allowed if there is an "objective justification" in terms of efficiencies. Although the burden of proof would be on the licensor side, there is always the possibility to raise efficiencies as a defence to abusive behaviours. This said, the limits of the "objective justification" is clear: "A conduct which maintains, creates or strengthens a market position approaching that of a monopoly can normally not be justified on the grounds that it also creates efficiency gains."37

The Commission has established some guidance in order to assess whether a conduct may constitute an "objective justification": (i) the efficiencies have to be directly linked with the conduct under evaluation; (ii) as a consequence of the connection, the conduct would have to be essential for the efficiencies; (iii) the beneficial or efficiency effects would have to be higher than the negative effects on competition and consumer welfare in the relevant market; and (iv) all effective competition must not be eliminated by the conduct.

Notwithstanding the right of a dominant company to argue that the abusive behaviour may be justified by efficiencies, Whish and Bailey have argue they are not aware of any case in which this would have occurred. They mentioned, as an example the case Intel v Commission in which, in their opinion, "Intel had not provided any evidence to show that its exclusivity rebates would lead to increased efficiency."38

Nevertheless, when it comes to IoT and 5G technology, price differentiation has clear advantages for consumers. Considering the wide applicability of mobile technology in the IoT sector, treating all licensees equally without taking into account the use potential licensees extract from, and make of, the technology, would be detrimental. Treating all licensees in the same way would be harmful in three interconnected ways: (i) products will not reach the market, because the established price is higher than the added value provided by the licensed technology; (ii) consumers will not have access to that products, therefore, they would not be able to enjoy the numerous benefits 5G and IoT bring to society; and (iii) the emergence of new and the segmentation of existing markets will be hindered, because of the deficient adaptation to the future rules of the game. In other words, price differentiation may help to create new markets and markets" segments, therefore providing consumers with products that bring numerous benefits to society, which otherwise would not be accessible.

C. Identification of a Potential Discriminatory Licensing Conduct

Currently, there are no clear guidelines on how to identify discriminatory behaviour. Even though not exhaustive, certain models for finding discrimination in licensing practices exist, which may be used.

Swanson and Baumol, propose their "Efficient Component Pricing Rule" (ECPR), requiring SEP holders that do not charge others less than they charge themselves. This rule has been criticised by specialists as having serious flaws due to the non-consideration of several factors.39

Crane, on the other hand, provides a procedural approach in order to identify discriminatory conducts.40

In court proceedings, the proof for an abuse of dominance lies, as a rule, with the plaintiff. Crane proposes that the burden of proof could be shifted to the SEP holder, therefore urging the licensor to justify likely anticompetitive behaviour. Since discrimination is difficult to monitor, this would be an excellent solution, because the licensor is better situated for providing evidence. One may say, however, that the licensor does not have exhaustive data concerning licensee's added value, surplus, business methods and products, but may provide data on what were the elements that resulted in a different treatment. In addition, the licensor can ask a court to enjoin the licensee to provide the pertinent piece of evidence.

Finally, Layne-Farrar, Padilla, and Schmalensee have developed a "formula for setting licensing fees based on patent value which can be adapted to specific scenarios of competition," called LFPS-rule. This method can be a guide when assessing unreasonable licensing terms ex post. However, Layne-Farrar clarifies: "if the question at hand is how much two licensees" rates and terms can differ without running afoul of anticompetitive discriminatory licensing allegations, the LFPS rule will be of little help."41

Notwithstanding their indicative value, these methods cannot be understood by courts and competition authorities as exhaustive formulas to determine whether Article 102 TFEU has been violated.

IV. Complementary Analysis

When discussing efficiencies justifying the abusive behaviour of a SEP holder, we might wonder whether setting different prices has a negative effect per se or not, or even if has the potential to distort competition. At first sight, competition authorities may face price discrimination with a critical eye, assuming detrimental effects for competition, which might derive from the comparison between monopoly and perfect competition. However, price discrimination is not always prejudicial.42

To have a holistic economic view of the issue, it is of paramount importance to pay attention to three factors: (i) anticompetitive foreclosure of potential competitors; (ii) harm to consumer welfare; (iii) concerns about innovation.

First, it is essential to analyse potential rivals" foreclosure. On the one hand, although it is always an empirical matter, the vast majority of economists and scholars have concluded that non-vertically integrated SEP holders have less incentives to price discriminate. In other words, patent holders who do not operate in the downstream market may not be attracted to price discriminate, if there is no direct competition with the discriminated licensee.43 Layne-Farrar highlights that "non-integrated firms will only be interested in anticompetitive licensing discrimination if it increases their total royalty payments, but often increased downstream competition will maximize upstream royalty earnings." This total increase of royalties may be fundamentally due to market segmentation which, per se, is not bad, if carried out in the light of licensors and licensees' characteristics, and total performance final products are taking from the standardised technology. The obvious example is IoT and 5G. Without efficient price discrimination in the IoT context, some products with lower profit margin will not reach the market, because of high entry barriers to the market in the form of uniformly high royalty costs, which would ultimately harm consumers.

On the other hand, as said before, vertically integrated firms appear to have greater incentives to distort competition than non-integrated companies. However, this merits some attention. Economics literature, such as Hovenkamp's work, analyse whether a company that has a dominant position (or even monopoly) in one market would be attracted to leverage its power to a second market. In this context, several elements are sometimes overlooked: (i) SEP license fees often represent a small percentage compared to total incremental costs of the patented product;44 and (ii) companies could be reluctant to assume new risks, when they already have a dominant position in the upstream market. Hence, discrimination practices may theoretically occur, but from a business standpoint might not be extremely interesting for SEP holders.

Second, according to Stole, uniform pricing can have mainly three detrimental effects on consumer welfare.45, 46 In this sense, potential consumer harm may be analysed correlatively: (i) in the standard setting context prices will always exceed marginal cost as a consequence of the nature of intellectual property, and the R&D upfront investments and sunk costs that the SEP holder must bear; (ii) misallocation of goods across consumers is merely relevant for third-degree price discrimination, but hardly likely in the intellectual property environment, since licenses are concluded after a long bilateral negotiation process;47, 48 and (iii) this is the example of standards that pool members vote in exchange of lower rates, lowering the standard quality and the market earnings in average. Last point constitutes a high inconvenient, which detrimental effects may be mitigated via an active role and proactive monitoring from SDOs.

Third, price discrimination has been observed as an important mechanism in order to recover sunk costs. Baumol and Swanson, among other commentators, suggest that price discrimination is sometimes necessary in order to recover upfront investments. Therefore, price discrimination may have the pro-competitive effect of allowing SEP holders and contributors to standards to recover their fixed R&D costs, earn a return on their investment in the development of standards, and, thus, to enhance incentives to innovate.

Setting different royalty rates when licensees are not similarly situated is not an issue confined only to the standardisation context. Moreover, several similar examples can be derived from the American music copyright industry.

Broadcast Music Inc. (MBI) and American Society of Composers and Performers (ASCAP) are bound by means of a consent decree not to discriminate licensees that are similarly situated. This consent decree has a similar effect as the FRAND commitment in the standard development context. However, MBI and ASCAP work as intermediaries between copyright owners and potential licensees granting non-exclusive licences to the latter.

Commitments from ASCAP and BMI both forbid agreements that discriminate in terms, conditions or license fees. ASCAP, for instance, understands similarly situated licensees as those who operate similar businesses, use music in the same manner, and with the same frequency. On the other hand, BMI consent decree states that divergences that may justify different prices shall not be considered discriminative. In addition, courts dealing with this industry have adopted the same approach, understanding that the mere offer of different prices to licensees that are not similarly situated is not sufficient to qualify as discriminatory practice.

The case involving the Portuguese collecting society in charge of managing revenues emerging from copyright-holders' rights is another example where the ND aspect was interpreted in a flexible manner. Here, the music industry faced, at the very beginning, similar anticompetitive problems as the standard development environment presents, but instead of treating all licensees in a uniform way (which in many cases would also be discriminatory), it was considered more important to evaluate certain factors, in order to ascertain whether licensees are similarly situated or not.49

V. Conclusions

Future technologies in the IoT bring a very different landscape, with a broad use of the same technology in different manners and levels. This entails that, oftentimes, licensees will not be similarly situated: autonomous car manufacturers will, indeed, not be similarly situated with smart meters producers, or connected fridge makers (which would use far less standardised connectivity, need lower speeds and, in overall terms, extract less value from the standardised technology than an autonomous car).

A question which is posed in this context is whether the SEP holder can treat similarly situated licensees differently (e.g., two autonomous car manufacturers). The answer seems to be affirmative. While German courts have recognised that FRAND is a range, the UK High Court has confirmed that the SEP holder can treat two similarly situated licensees differently under certain circumstances. Applying restrictions only to exceptional circumstances makes sense, since price discrimination allows for new products and functionalities to reach the market. In addition, a certain level of flexibility is needed in FRAND negotiations, since different factors can influence their outcome, such as negotiation skills and the value of the technology (which may vary, depending on the strength of the patent portfolios, the ability to offer cross-licenses, the differences in the scope and geographical coverage, etc).

The European Commission identified the following set of FRAND licensing principles that seem to adopt the same added value approach that was defended throughout this paper: (i) licensing terms have to represent the trade-off between the patented technology and its economic value; (ii) the FRAND value has to take into account the current value added to the patented technology to the standard; (iii) FRAND valuation shall incentivise patent holders to contribute their best technology to the standard; and (iv) individual SEPs should not be considered in isolation in order to avoid royalty stacking.50

As previously highlighted, this approach is further confirmed by the Unwired Planet v. Huawei decision of the UK Court of Appeal, that rejected the hard-edged ND application, adopting a general approach that provides the standards development context with more flexibility. Opting for the alternative interpretation—hard-edged non-discrimination—would have amounted to a "most favoured licensee clause," where all similarly situated licensees have the opportunity to take profit of the beneficial terms and conditions other licensees have concluded, oftentimes through a legitimate negotiation process.51 On the contrary, the Court considered that different prices must not be considered per se as an abusive practice, since under certain circumstances they might increase social welfare.52 Vice versa, establishing an obligation for SEP holders to grant similar situated implementers the same royalty rate could entail detrimental consequences, since it would negatively affect the balance between access to technology and a fair return on the investments of SEP holders which constitutes the foundation of the standardisation process.53

In addition, effects on consumer welfare and adverse impact on incentives to innovate must also not be neglected. In order to conduct a correct assessment, the ability of price differentiation to foster innovation must not be underestimated, especially when studies have shown the convenience of price discrimination as a mechanism to recover junk costs. In any case, in both scenarios, discrimination must not be regarded as harmful per se. As competition authorities do not prohibit companies to take advantage of market power obtained lawfully, they should not—prima facie-— prohibit price discrimination applied to optimise their profits. Therefore, antitrust agencies should limit their intervention on price control to extraordinary circumstances. Otherwise, there is a risk of replacing the competitive market process with a regulatory framework that dictates outcomes.

In summary, discrimination, or the other way around, non-discrimination, has to be interpreted coherently, proportionately and in a way that guarantees both access to technology and competition. It remains important to highlight the difference between negative market outcomes and violations of competition law. Identical licences only differing in price will rarely be concluded. Therefore, a case-by-case exercise is needed in order to determine when discrimination has occurred. Certainly, 5G and IoT are already opening a new legal landscape to which competition law has to adapt accordingly. ■
Available at Social Science Research Network (SSRN):
https://ssrn.com/abstract=3470188

  1. This paper will focus on formal or de jure standards, which are those approved and adopted by recognised standard bodies.
  2. Moreover "[t]he interconnected things have physical or virtual representation in the digital world, sensing/actuation capability, a programmability feature and are uniquely identifiable. The representation contains information including the thing's identity, status, location or any other business, social or privately relevant information. The things offer services, with or without human intervention, through the exploitation of unique identification, data capture and communication, and actuation capability. The service is exploited through the use of intelligent interfaces and is made available anywhere, anytime, and for anything taking security into consideration." See IEEE, "Towards a definition of the Internet of Things (IoT)," Telecom Italia S.p.A., IEEE Internet Initiative (2015). Available at http:// iot.ieee.org/images/files/pdf/IEEE_IoT_Towards_Definition_Internet_of_Things_Revision1_27MAY15.pdf.
  3. Niklas Heuveldop: "Ericson Mobility Report," (Ericsson, Stockholm, 2017). Available at https://www.ericsson.com/assets/ local/mobility-report/documents/2017/ericsson-mobility-report-june-2017.pdf.
  4. Building management systems, are defined as a "control system, consisting of software, hardware and communication protocols to control and monitor a vast range of building systems and controls." In practice this is translated into a system that allows the user to control different services such as video-surveillance, house temperature and lighting. For more information see https://www.i-scoop.eu/building-management-building-management-systems-bms/.
  5. See Alliance for Internet of Things Innovation, "Internet of Things Applications," AIOTI WG01—IERC (2015). Available at https://aioti-space.org/wp-content/uploads/2017/03/AIOTIWG01Report2015-Applications.pdf.
  6. The Standard Development Organisation called ETSI defines a standard as "a document that provides rules or guidelines to achieve order in a given context." See https://www.etsi.org/standards/why-standards.
  7. See supra note 4, Niklas Heuveldop.
  8. See European Commission, "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Connectivity for a Competitive Digital Single Market—Towards a European Gigabit Society," COM(2016) 587 final. Available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri= CELEX:52016DC0587&from=ES.
  9. Not only but particularly in the third pillar from the DSM strategy titled "Maximising the growth potential of the Digital Economy," Information and Communication Technologies (ICT) standardisation is considered as a priority. See European Commission, "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single Market Strategy A Connected Digital Single Market for All," COM(2017) 228 final. Available at http://eur-lex.europa.eu/ resource.html?uri=cellar:a4215207-362b-11e7-a08e-01aa75ed71a1.0001.02/DOC_1&format=PDF.
  10. See European Commission: "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on ICT Standardisation Priorities for the Digital Single Market," COM(2007) 574 final). Available at https://ec.europa. eu/digital-single-market/en/news/communication-ict-standardisation-priorities-digital-single-market. To better understand the evolution from 1G to 4G standards please see Qualcomm: "The Evolution of Mobile Technologies: 1G, 2G, 3G, 4G LTE," (2014). Available at https://www.qualcomm.com/documents/evolution-mobile-technologies-1g-2g-3g-4g-lte; See ETSI 5G. Available at https:// www.etsi.org/technologies-clusters/technologies/5g.
  11. See Boston Consulting Group, 'The Mobile Revolution' (2015). Available at https://www.bcgperspectives.com/ content/articles/telecommunications_technology_business_transformation_mobile_revolution/. See improvements on 5G at Ron Davies, "5G Network Technology: Putting Europe at the leading edge." (European Parliament Briefing, European Parliament Research Service, 2016). Available at http://www.europarl.europa. eu/RegData/etudes/BRIE/2016/573892/EPRS_BRI(2016)573892_ EN.pdf.
  12. See Claudia Tapia, "Securing a competitive future for Europe," The Patent Lawyer, CTC Legal Media (2016).
  13. Thirty percent of units are less than $100, according to International Data Corporation.
  14. See supra note 12, Boston Consulting Group.
  15. For an explanatory video from 5G PPP see https://youtu. be/bfNmiYtG9Cg.
  16. See Fredrik Nilsson, "Appropriate base to determine a fair return on investment: A legal and economic perspective on FRAND," GRUR Int (2017).
  17. See Kirti Gupta, The Role of SMEs and Startups in Standards Development (July 12, 2017). Available at SSRN: https://ssrn.com/ abstract=3001513 or http://dx.doi.org/10.2139/ssrn.3001513.
  18. See ETSI, "Essential IPRs in ETSI." Available at http://www. etsi.org/about/how-we-work/intellectual-property-rights-iprs.
  19. On FRAND licensing negotiations see Luis Herranz and Claudia Tapia, Good and Bad Practices in FRAND Licence Negotiation, Resolving IP Disputes, Zeiler/Zojer (2018), p. 49 et seqq. The Court of Justice of the European Union established a set of obligations for SEP holders and SEP users to obtain or avoid injunctive relief respectively. See Case C-170/13 Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH [2015] CJEU. Available at http://curia.europa.eu/juris/document/document.jsf?docid=165911&doclang=en.
  20. For example, the Court of Justice of the European Union established a set of obligations for SEP holders and SEP users to obtain or avoid injunctive relief respectively. See Case C-170/13 Huawei Technologies Co. Ltd v. ZTE Corp., ZTE Deutschland GmbH [2015] CJEU. Available at http://curia.europa.eu/juris/ document/document.jsf?docid=165911&doclang=en
  21. See Larry Goldstein and Brian Kerasey, "Technology Patent Licensing: An International Reference on 21st Century Patent Licensing, Patent Pools and Patent Platforms" U.S.: Aspatore, Inc. (2004).
  22. See supra note 19, ETSI IPR Policy; See Daniel Crane, "Patent pools, RAND commitments, and the problematics of price-discrimination." Harry First, Rochelle Dreyfuss, and Diane Zimmerman, eds., Oxford University Press (2018). Available at https://www.researchgate.net/publication/228164386_Patent_ Pools_RAND_Commitments_and_the_Problematics_of_Price_ Discrimination.
  23. See Edward Sherry, David Teece and Peter Grindley, "Working Paper Series No. 14 On the 'Non-Discrimination' Aspect of F/RAND Licensing: A Response to the Indian Competition Commission's Recent Order, Tusher Center for the Management of Intellectual Capital," University of California Berkeley (2016). Available at http://businessinnovation.berkeley.edu/wp-content/ uploads/2014/07/Tusher-Center-Working-Paper-No.-14.pdf.
  24. See Mario Mariniello, "Fair, Reasonable and Non Discriminatory (FRAND) Terms: A Challenge for Competition Authorities," Journal of Competition Law and Economics, Oxford University Press, Vol. 7, N. 3 (2011). Available at https://academic. oup.com/jcle/article/7/3/523/942039.
  25. See Daniel G. Swanson and William J. Baumol: "The New Economy and Ubiquitous Competitive Price Discrimination: Identifying Defensible Criteria of Market Power, Symposium on Competitive Price Discrimination," 70 Antitrust Law Journal 661, (2003). Available at https://www.jstor.org/stable/40843572.
  26. [2017] EWHC 711 (Pat), Case no: HP-2014-000005, para. 503. Available at https://www.judiciary.gov.uk/wp-content/uploads/2017/04/unwired-planet-v-huawei-20170405.pdf.
  27. See [2018] EWCA Civ 2344, Case No: A3/2017/1784, para. 194 et seqq. Available at https://www.judiciary.uk/wp-content/uploads/2017/04/unwired-planet-v-huawei-20170405.pdf; "Unwired Planet v Huawei," UK Court of Appeal, (2018), English summary available at https://caselaw.4ipcouncil.com/english-court-decisions/unwired-planet-v-huawei-uk-court-appeal#_ftn43.
  28. See supra note 28, Unwired Planet v. Huawei [2018].
  29. See Anne Layne-Farrar, "Non-Discriminatory Pricing: What is Different (and What is Not) about IP Licensing in Standard Setting," (June 2009). Available at https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1427924.
  30. See Dennis W. Carlton and Allan Shampine: "An Economic Interpretation of FRAND," SSRN (April 2013). Available at: https://ssrn.com/abstract=2256007.
  31. See supra note 28, Unwired Planet v. Huawei [2018].
  32. See The 5G Infrastructure Public Private Partnership: "The next generation of communication of networks and devices," 5GPPP supported by the European Commission, 5G Infrastructure Association, (2015). More information at https://5g-ppp.eu.
  33. See Steven Anderman and John Kallaugher: "Technology Transfer and the new EU Competition Rules," Oxford University Press (2006). Available at https://global.oup.com/academic/product/technology-transfer-and-the-new-eu-competition-rules-978019 9282142?cc=es&lang=en&.
  34. As commented above, if companies are not competing against each other, the "competitive disadvantage" requirement would not be fulfilled.
  35. See supra note 29, para. 153, Unwired Planet v. Huawei [2018].
  36. See Avanci, "Avanci's White Paper, Avanci: Accelerating IoT Connectivity," (2016). Available at http://avanci.com/wp-content/ uploads/2017/01/2016-Avanci-WP-Final-_-Jan-24.pdf.
  37. See European Commission, "Communication from the Commission—Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings," Information from European Union Institutions and bodies commission (2009/C 45/02). Available at https://eur-lex.europa.eu/legal-content/EN/AL L/?uri=CELEX:52009XC0224(01).
  38. Case T-286/09 Intel v Commission [2012] CJEU. Available at http://curia.europa.eu/juris/liste.jsf?num=T-286/09. See Richard Whilsh and David Bailey, "Competition Law," 8th Edition, Oxford University Press (July, 2015). Available at https://global.oup.com/academic/product/competition-law- 9780198779063?cc=es&lang=en&.
  39. For more information see note 30 Layne-Farrar; note 26 Swanson and Baumol, and note 31 Carlton and Shampine.
  40. See Daniel Crane, "Patent pools, RAND commitments, and the problematics of price-discrimination." Harry First, Rochelle Dreyfuss, and Diane Zimmerman, eds., Oxford University Press (2018). Available at https://www.researchgate.net/publication/228164386_Patent_Pools_RAND_Commitments_and_the_ Problematics_of_Price_Discrimination.
  41. See supra note 30, Anne Layne-Farrar.
  42. See James Cooper et al, "Does Price Discrimination Intensify Competition? Implications for Antitrust," (2005). Available at http://www2.owen.vanderbilt.edu/lukefroeb/froeb.papers/Discrimination/2004.ALJ.pdf.
  43. See Herbert Hovenkamp et al., "Unilateral Refusals to License in the U.S.," University of Pennsylvania Law School, Legal Scholarship Repository (2005). https://scholarship.law.upenn. edu/cgi/viewcontent.cgi?referer=https://www.google.es/&httpsre dir=1&article=2922&context=faculty_scholarship.
  44. See supra note 12, Boston Consulting Group.
  45. Potential sources of social inefficiency evaluated in static models.
  46. See Lars Stole, "Price Discrimination and Competition," Chapter 34, Handbook of Industrial Organization, V. 3, Amstrong & Porter Editors, North-Holland (2007).
  47. Nevertheless dangerous when bargaining powers are not well-balanced.
  48. See Justus Baron and Kirti Gupta, "Unpackaging 3GPP Standards," SSRN (2018). Available at https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=3119112.
  49. See Kenneth M. Frankel et al: "What does non-discriminatory mean in RAND licensing of standard-essential patents?" Garret & Dunner LLP (2014). Available at http://www.lexology.com/ library/detail.aspx?g=5a22fc18-1fb1-46db-a1aa-8ac9ee3cfd92. See Case C-525/16, Meo v. Autoridade da Concorrencia, [2017] CJEU. Available at http://curia.europa.eu/juris/celex.jsf?celex=62 016CJ0525&lang1=en&type=TXT&ancre=.
  50. See European Commission: "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on Setting out the EU approach to Standard Essential Patents,"(COM (2017) 712. Available at https://ec.europa.eu/docsroom/documents/26583.
  51. See supra note 28, para. 169 et seq., Unwired Planet v. Huawei [2018].
  52. See supra note 28, para. 197., Unwired Planet v. Huawei [2018].
  53. See supra note 28, para. 198., Unwired Planet v. Huawei [2018].

Bibliography

Legal Texts And Other Official Documents
European Commission, "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Mid-Term Review on the implementation of the Digital Single Market Strategy A Connected Digital Single Market for All," COM(2017) 228 final. Available at http://eur-lex.europa.eu/resource.html?uri=cellar:a4215207-362b-11e7-a08e-01aa75ed71a1.0001.02/DOC_1&format=PDF.
European Commission, "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Connectivity for a Competitive Digital Single Market—Towards a European Gigabit Society," COM(2016) 587 final. Available at http://eur-lex.europa.eu/legal-content/EN/TXT/ PDF/?uri=CELEX:52016DC0587&from=ES.
European Commission: "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on ICT Standardisation Priorities for the Digital Single Market," COM(2007) 574 final). Available at https://ec.europa.eu/digital-single-market/en/news/communication-ict-standardisation-priorities-digital-single-market.
European Commission: "Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on Setting out the EU approach to Standard Essential Patents" (COM (2017) 712. Available at https://ec.europa.eu/docsroom/documents/26583.
European Commission: "Communication from the Commission—Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings," Information from European Union Institutions and bodies commission (2009/C 45/02). Available at https://eur-lex.europa.eu/legal-content/EN/ ALL/?uri=CELEX:52009XC0224(01).
ETSI, "Essential IPRs in ETSI," Available at http:// www.etsi.org/about/how-we-work/intellectual-property-rights-iprs.
OECD: "Roundtable on "Price Discrimination," Directorate for Financial and Enterprise Affairs, Competition Committee. DAF/COMP/WD(2016)69, (November 2016). Available at https://one.oecd.org/document/ DAF/COMP/WD(2016)69/en/pdf.
The 5G Infrastructure Public Private Partnership: "The next generation of communication of networks and devices," 5GPPP supported by the European Commission, 5G Infrastructure Association, (2015). More information at https://5g-ppp.eu.
Avanci, "Avanci's White Paper, Avanci: Accelerating IoT Connectivity" (2016). Available at http://avanci. com/wp-content/uploads/2017/01/2016-Avanci-WP-Final-_-Jan-24.pdf.
IEEE, "Towards a definition of the Internet of Things (IoT), Telecom Italia S.p.A., IEEE Internet Initiative (2015). Available at http://iot.ieee.org/images/files/pdf/ IEEE_IoT_Towards_Definition_Internet_of_Things_Revision1_27MAY15.pdf.
Alliance for Internet of Things Innovation, "Internet of Things Applications," AIOTI WG01—IERC (2015). Available at https://aioti-space.org/wp-content/uploads/2017/03/ AIOTIWG01Report2015-Applications.pdf.
Boston Consulting Group, "The Mobile Revolution" (2015). Available at https://www.bcgperspectives.com/ content/articles/telecommunications_technology_business_transformation_mobile_revolution/. See improvements on 5G at Ron Davies, "5G Network Technology: Putting Europe at the leading edge" (European Parliament Briefing, European Parliament Research Service, 2016). Available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573892/EPRS_ BRI(2016)573892_EN.pdf.
Qualcomm: "The Evolution of Mobile Technologies: 1G, 2G, 3G, 4G LTE," (2014). Available at https://www. qualcomm.com/documents/evolution-mobile-technologies-1g-2g-3g-4g-lte.
Niklas Heuveldop: "Ericson Mobility Report," (Ericsson, Stockholm, 2017). Available at https://www.ericsson.com/assets/local/mobility-report/documents/2017/ ericsson-mobility-report-june-2017.pdf.
Curia-Documents, Judgment Of The Court (Fifth Chamber) 16 July 2015 ()(Competition—Article 102 TFEU—Undertaking holding a patent essential to a standard which has given a commitment, to the standardisation body, to grant third parties a licence for that patent on fair, reasonable and non-discriminatory terms ('FRAND terms')—Abuse of a dominant position—Actions for infringement—Action...curia.europa.eu

Relevant Case Law
Case AT. 39939—Samsung—Enforcement of UMTS Standard Essential Patents. Antitrust Procedure. European Commission. Commission Decision (April 2014). Available at http://ec.europa.eu/competition/antitrust/ cases/dec_docs/39939/39939_1501_5.pdf.
Case T-286/09 Intel v Commission [2012] CJEU. Available at http://curia.europa.eu/juris/liste.jsf?num=T-286/09.
Case C-170/13 Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH [2015] CJEU. Available at http://curia.europa.eu/juris/document/document.jsf?docid=165911&doclang=en.
Case C-209/10 Post Danmark A/S v Konkurrencerådet [2012] CJEU. Available at http://curia.europa.eu/juris/ liste.jsf?language=es&jur=C,T,F&num=C-209/10&td=ALL.
Case C-24/67, Parke Davis & Co v Probel [1968] CJEU. Available at http://curia.europa.eu/juris/liste.jsf?language=es&jur=C,T,F&num=C-24/67&td=ALL.
Case C-95/04, P British Airways plc v Commission, [2007] CJEU. Available at http://curia.europa.eu/juris/ liste.jsf?language=en&num=C-95/04.
Case C-525/16, Meo v. Autoridade da Concorrencia, [2017] CJEU. Available at http://curia.europa.eu/juris/ celex.jsf?celex=62016CJ0525&lang1=en&type=TXT&ancre=.
[2017] EWHC 711 (Pat), Case no: HP-2014-000005 Available at https://www.judiciary.gov.uk/wp-content/uploads/2017/04/unwired-planet-v-huawei-20170405.pdf.
[2018] EWCA Civ 2344, Case No: A3/2017/1784. Available at https://www.judiciary.uk/wp-content/uploads/2017/04/unwired-planet-v-huawei-20170405.pdf.

References
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Larry Goldstein and Brian Kerasey, "Technology Patent Licensing: An International Reference on 21st Century Patent Licensing, Patent Pools and Patent Platforms" U.S.: Aspatore, Inc., ( 2004).
Anne Layne-Farrar, "Non-Discriminatory Pricing: What is Different (and What is Not) about IP Licensing in Standard Setting" (June 2009). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1427924.
Gunnar Niels et al, "Economics for Competition Lawyers," 2nd Edition, Oxford University Press (2016). Available at https://global.oup.com/academic/product/ economics-for-competition-lawyers-9780198717652?cc=es&lang=en&.
Damien Geradin, "Abusive Pricing in an IP Licensing Context: An EC Competition Law Analysis" Claus-Dieter Ehlermann and Mel Marquis (eds.),European Competition Law Annual (2007). Available at http:// www.eui.eu/Documents/RSCAS/Research/Competition/2007ws/200709-COMPed-Geradin.pdf.
Miguel Rato and Nicolas Petit, "Abuse of Dominance  in Technology-enabled markets: Established standards Reconsidered?," European Competition Journal (April, 2013). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2387357.
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Mario Mariniello, "Fair, Reasonable and Non Discriminatory (FRAND) Terms: A Challenge for Competition Authorities," Journal of Competition Law and Economics, Oxford University Press, Vol. 7, N. 3 (2011). Available at https://academic.oup.com/jcle/article/7/3/523/942039.
Daniel G. Swanson and William J. Baumol: "The New Economy and Ubiquitous Competitive Price Discrimination: Identifying Defensible Criteria of Market Power, Symposium on Competitive Price Discrimination," 70 Antitrust Law Journal 661, (2003). Available at https://www.jstor.org/stable/40843572.
Dennis W. Carlton and Allan Shampine: "An Economic Interpretation of FRAND," SSRN (April 2013). Available at: https://ssrn.com/abstract=2256007.
Anderman and John Kallaugher: "Technology Transfer and the new EU Competition Rules," Oxford University Press (2006). Available at https://global.oup.com/academic/product/technology-transfer-and-the-new-eu-competition-rules-9780199282142?cc=es&lang=en&.
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