License to All or Access to All? A Law and Economics Assessment of Standard Development Organizations’ Licensing Rules

In the continuing debate over licensing standard essential patents (SEPs) with FRAND commitments (to license on fair, reasonable, and non-discriminatory terms and conditions), one of the most heated topics is whether FRAND commitments should be interpreted to require licensing all comers, or whether access to standards can be achieved through other, less rigid means. This article evaluates both the legal and the economic arguments underlying this debate. This article concludes that neither the law nor economic welfare justifies a “license to all” interpretation of FRAND commitments. To the contrary, such a regime is not supported by patent, contract or antitrust law, and likely would be harmful to social welfare.