Introduction - Often, an industry-adopted technical standard includes technology covered by patents, and the owners of these patents agree to license the patents on fair, reasonable, and non-discriminatory (FRAND) terms as part of the standard-setting process. This article explores options available to the patent owners when a member of the industry declines to accept a license on terms deemed to be FRAND by the patent owner, and nevertheless, implements the standard.

A technical standard may be defined as an established norm or requirement which provides a common design for a product or process. Examples of technical standards include application programming interfaces, communication protocols (e.g., Wi-Fi and Ethernet), and computer hardware standards (e.g., USB and HDMI), to name a few. While some technical standards may arise as the result of widespread use and acceptance in a market (i.e., “de facto” standards) or a government mandate (i.e., “de jure” standards), in many instances, the adoption of a technical standard is determined by a standard setting organization (SSO) including manufacturers, engineers, and users of a given industry.