An Economist’s View on FRAND in Light of the Current SEP Policy Debate – Episode 4

December 20, 2021

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  • Justus Baron, Northwestern University

Justus Baron (PhD) is a Senior Research Associate at the Center on Law, Business, and Economics at Northwestern University’s Pritzker School of Law. His previous research positions include Mines ParisTech, Cerna (2009-2012) and Sciences Po Paris, Department of Economics as an Adjunct lecturer and researcher (2012-2013). He has also served as a visiting researcher at the Hitotsubashi University, Institute of Economic Research and Technische Universität Berlin, Chair of Innovation Economics. Justus met Tim during his PhD in 2009, when they worked together in Berlin and Paris. In 2009 they were among the first economists to use patent declarations data from SSOs such as ETSI, IEEE or ITUT to empirically study the interplay of patents and standards.

Today, Justus’ research on technology standards and SEPs has been published in leading academic journals, including Research Policy, the Journal of Economics, Management, and Strategy, and the International Journal of Industrial Organization. Justus has authored several policy reports on FRAND licensing and standards organizations, in particular for the European Commission; and he was a member of the European Commission’s SEP Expert Group. Just recently the European Commission (DG GROW) has commissioned a new study to a consortium led by Justus and Tim and other consortium members, assisting the European Commission with an “Economic Impact Assessment on Standard Essential Patents (SEPs)”.

In the Podcast Justus elaborates on the topics that this empirical research study will cover, including the identification of potential inefficiencies and costs both for SEP holders and standard implementors in the process of agreeing to a FRAND license. Justus addresses several of the big questions around SEP licensing, such as what stage in the value chain SEPs will be licensed and how one can define a FRAND rate. Justus also sheds light on questions like how should regulators such as the EU Commission be involved and who defines the standards on how FRAND should be negotiated? Should standards organizations be involved in SEP determination or FRAND rate discussions? Such questions of governance must be answered by studying the impact of regulation and what incentivizes these sets. Justus feels that as an empirical economist, he can contribute to a better understanding of some complex aspects of FRAND and SEP licensing.

Transparency about SEP issues is important, but here transparency also means to be transparent about the limitations of data and empirical analysis. In the end, the available information is never perfect and we have to consider that in any analysis that we do. In his work for the European Commission’s SEP Expert Group, it was very important to reflect different views and to produce a balanced report. In order to keep that balance, the report reflects many individual experts’ viewpoints and specific recommendations, rather than aiming for a consensus view on inherently controversial issues. That in the end may have also been why some criticized the European Commission’s SEP Expert Group final report as falling short of resolving some of the open controversies. Justus is among the leading economists that study SEPs, and he believes the next years will be even more interesting when the licensing of SEPs for IoT will start to pick up.

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