A Contractual Theory of FRAND: From Private Normativity to Legal Obligation in Technical Standardization

This book argues that technical standardization of FRAND generates a form of private normativity by organizing conduct, dependence, and expectations of access. Those expectations do not, however, create an autonomous right to a license. Legal obligation arises from the individual FRAND undertaking made within the institutional framework of a standard-setting organization.

Technical standards are commonly presented as neutral instruments of interoperability. Their adoption, however, structures markets, directs investment, and creates forms of technological dependence whose consequences extend far beyond engineering. When patented technology becomes essential to a widely implemented standard, the resulting expectations of access raise a prior legal question: what makes an undertaking to license on fair, reasonable, and non-discriminatory terms legally binding?

Focusing on the European Telecommunications Standards Institute (ETSI) and the French law governing its intellectual property policy, the book:

• distinguishes the technical standard, the SSO policy, the individual FRAND undertaking, the downstream license, and the consequences of non-performance;
• characterizes the FRAND undertaking as a stipulation pour autrui, through which implementers acquire a direct right to performance without an automatic license being formed;
• identifies the promised performance as the effective availability of FRAND licensing terms through a cooperative process and, where necessary, judicial or arbitral concretization;
• explains why willingness, transparency, cooperation, and intensified good faith govern the performance of a pre-existing obligation rather than constitute its source;
• shows why an implementer’s right to remunerated access is not an unconditional immunity from injunctive relief and cannot be invoked abusively by an unwilling implementer; and
• provides a coherent method for addressing beneficiary standing, governing law, licensing negotiations, injunctions, judicial rate-setting, interim arrangements, transfer, mediation, and arbitration.

Drawing on EU law and French, U.K., German, U.S., Japanese, and selected Dutch materials, the book also explains why competition law retains an independent corrective function without supplying the private-law foundation of the FRAND undertaking.

Beyond the FRAND question itself, the study examines how law can give enforceable form to undertakings produced within privately organized technical infrastructures without surrendering legal judgment to technical or economic rationality. It shows how contract law can preserve both effective access to standardized technologies and the legitimate remuneration of patent holders.

The book will be of particular interest to judges, lawyers, academics, policymakers, licensing professionals, and practitioners involved in standard-essential patent licensing and technical standardization.