The statement comes as several mobile handset makers have come under regulatory scrutiny, in the US and Europe, for allegations they are not meeting their commitments to license industry-essential technology on so-called FRAND (fair, reasonable and non-discriminatory) terms. The competition investigations, as well as a number of the ongoing lawsuits over smartphones, are the result of some manufacturers accusing suppliers and rivals of demanding unreasonable licensing terms in order to guard their own market share and exclude rival products from the market. The regulatory pressure may be the reason why Samsung and Motorola Mobility have recently withdrawn some lawsuits seeking sales injunctions against rivals.
The DoJ and PTO said their recommendation aims to prevent "opportunistic conduct" by patentholders and potential licensees and provide greater certainty concerning the meaning of a FRAND commitment and the importance standardisation plays in the consumer interest. They noted that there could still be limited circumstances when an exclusion order is an appropriate remedy, such as where the putative licensee is unable or refuses to take a FRAND licence, refuses to pay what has been determined to be a FRAND royalty, or refuses to engage in negotiations to determine FRAND terms.
