Post-signing adjustment of SEP/FRAND licenses

Abstract

The question of whether, when and how SEP/FRAND licenses ought to be “adjusted” in the case of a post-signing alteration in the set of licensed patents is of increasing practical relevance. Adjustment may be necessary to keep a license FRAND in the event of far reaching portfolio alterations and several legal instruments could potentially provide the basis for performing such adjustments, amongst them “adjustment clauses” which are integrated ex ante into the license contract or general principles of patent or competition law. On the other hand, the risk to generate continuous conflict between the parties cautions against making adjustment available too easily.
This article maps the present legal framework regarding license adjustment on the EU, as well as on certain parts of the Member State level. It highlights a selection of fundamental aspects that ought to be taken into consideration for the development of appropriate solutions. Against this background, potential tools for and elements of such solutions are evaluated.