Jorge Contreras, an associate professor at the University of Utah S.J. Quinney College of Law, has recently published two articles:
A Brief History of FRAND: Analyzing Current Debates in Standard-Setting and Antitrust through a Historical Lens, 80 Antitrust L.J. 39-120 (2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2374983
This article offers a comprehensive history of the development of commitments to license patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). Contrary to current assumptions, these commitments originated in the 1940s through a series of antitrust remedial decrees. This article catalogs more than 100 such commitments made from the 1940s through the 1970s and draws from them a number of lessons that can be applied to current debates over FRAND commitments in the context of technical standard setting.
A Market Reliance Theory for FRAND Commitments and Other Patent Pledges, 2015 Utah L. Rev. 479-558 (2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2309023
This article analyzes current legal theories used to justify the enforcement of patent holder commitments including FRAND commitments made in the standard-setting context. It refutes prevailing legal reasoning based in common law contract, antitrust and other doctrine and proposes, instead, a theory based on promissory estoppel and the rebuttable presumption of reliance borrowed from the fraud-on-the-market theory under Federal securities law.