Asian perspectives

Because most of the issues relating to FRAND-encumbered SEPs arise from the SEP holders’ FRAND declaration, it is crucial to explore the legal nature of FRAND declaration and how this nature will affect the application of patent law, contract law and competition law in various FRAND disputes. This chapter first explores the purpose of the FRAND declaration, followed by a comparative study of FRAND’s legal characteristics in three major countries in East Asia, namely China, Japan and Korea. While courts in these three civil law countries all recognize that FRAND declaration does not constitute a license agreement between the SEP holder and the implementer, their approaches to the legal effect of FRAND declaration are subtly different. This chapter also explores the convergence of FRAND declaration’s legal effect in these three jurisdictions in terms of good faith negotiation and injunctive relief. While there is no doubt that SEP holders may violate competition law by abusing their dominant market position, competition policies on FRAND declaration are comparatively unclear in these three countries.