The Promise You Made to the Standards Body: FRAND Commitments, Essentiality, and What a Patent Is Worth in a Standard
By Casey Scott McKay ·
A patent declared essential to a standard is worth something quite different from the same patent outside one, and the difference is a promise made to a standards body years before anyone was sued. This article works what a FRAND commitment actually is - a contract with the standards organisation, enforceable by implementers as third-party beneficiaries - and what it constrains. It explains why declared-essential portfolios are systematically over-declared and what an essentiality analysis has to establish. It then works rate setting: comparable licences, top-down apportionment, the royalty base fight between the smallest saleable unit and the end product, and how courts have handled each. It closes with injunction availability, the hold-up and hold-out framing, and the antitrust claims that run alongside.
IP and Technology > Patent Litigation | Article | Published 16 October 2024 - Updated 5 February 2026 | Casey Scott McKay - marksy.us
Summary. A patent declared essential to a standard is worth something quite different from the same patent outside one, and the difference is a promise made to a standards body years before anyone was sued. This article works what a FRAND commitment actually is — a contract with the standards organisation, enforceable by implementers as third-party beneficiaries — and what it constrains. It explains why declared-essential portfolios are systematically over-declared and what an essentiality analysis has to establish. It then works rate setting: comparable licences, top-down apportionment, the royalty base fight between the smallest saleable unit and the end product, and how courts have handled each. It closes with injunction availability, the hold-up and hold-out framing, and the antitrust claims that run alongside.
Keywords: standard essential patents · FRAND commitment · standards development organisation · IPR policy · declaration and disclosure · essentiality analysis · over-declaration · hold-up and hold-out · Microsoft v Motorola · Ericsson v D-Link · TCL v Ericsson · royalty base · smallest saleable patent practising unit · entire market value rule · comparable licences · top-down rate setting · injunction limits · eBay factors · antitrust overlay · portfolio licensing
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