Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, and interconnections and transactions become more complex around standards, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind about how adopting a private law, property rights-based approach to patents enables them to better operate as tools for facilitating the commercialization of new technologies in ways that best promote the goals of increasing access while fostering competition and security for a diverse and inclusive society.

Chapter 20 covers issues relating to the licensing of patents in the context of technical standard setting. It briefly summarizes the development of standards-development organizations (SDOs) and their policies regarding patents on standards. It then addresses the issue of determining fair, reasonable and nondiscriminatory royalty rates, which are required by many SDO patent policies. It also covers patent disclosure requirements under SDO policies (Qualcomm v. Broadcom) and the contours of the nondiscrimination prong of FRAND. Next it addresses the effect of a FRAND commitment on the ability of parties to seek injunctive relief (Apple v. Motorola), and then the effect of the transfer of an underlying patent on the FRAND commitment made by its prior owner.