How do the Draft Horizontal Guidelines propose to assess the ex ante disclosures of most restrictive licensing terms?
One of the inherent problems of a standard-setting process is the uncertainty about the commercial terms that intellectual property rights holders will charge once the standard has been adopted and industry is locked in (“locked in” means that the costs in switching to another technology would be prohibitive). In order to solve this issue, most standard-setting organisations already require companies whose intellectual property rights would read on a standard to commit to licensing those rights on so called “FRAND” (fair, reasonable and non-discriminatory) terms. However, experience shows that disputes may arise as to the exact level of FRAND. Therefore, it has been suggested that unilateral ex ante disclosures of the maximum terms that a company would charge if its technology were incorporated in a standard would be one way of avoiding disputes. Industry and standard-setting organisations have however been cautious for fear of infringing competition law. The Draft Horizontal Guideline
