Scandinavian Working Papers in Economics

Working Paper Series,
Research Institute of Industrial Economics

No 1314: International Jurisdiction over Standard-Essential Patents

Henrik Horn ()
Additional contact information
Henrik Horn: Research Institute of Industrial Economics (IFN), Postal: Research Institute of Industrial Economics, Box 55665, SE-102 15 Stockholm, Sweden

Abstract: A sizeable literature analyzes the appropriate interpretation of FRAND commitments for standard-essential patents. With few exceptions, the literature disregards international dimensions, despite the fact that most standards are used in international markets. This paper uses a simple economic setting to assess pros and cons of the main jurisdictional bases in international law—the Territoriality and Nationality Principles—when national regulatory authorities have conflicting views regarding the appropriate interpretation of FRAND commitments. The paper identifies situations where the bases can implement efficient outcomes, and where they fail. The paper also shows how non-discrimination obligations might improve upon the outcomes.

Keywords: Standard-essential patents; International jurisdiction; Default rules

JEL-codes: F15; K21; K33; L40; O38

39 pages, First version: January 7, 2020. Revised: May 4, 2021.

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