International jurdisdiction over standard-essential patents

Abstract

Countries are alleged to pursue commercial interests through their antitrust interventions regarding FRAND commitments for standard-essential patents (SEPs). This paper examines pros and cons of allocating jurisdiction according to fundamental principles in international law, assuming that countries' regulations promote national objectives. It shows why the Territoriality Principle yields too lenient treatment of patent-issuing countries' SEPs, and too strict of treatment of other countries' SEPs, and why the Nationality Principle yields too lenient treatment generally. Non-discrimination obligations can, but need not, improve on outcomes. Hence, existing international law will typically not implement efficient outcomes, suggesting that an international agreement is required.