Standard Setting: Should there be a Level Playing Field for all FRAND Commitments?

In the past few years, issues related to FRAND or fair, reasonable, and non-discriminatory licensing rates for patents have garnered considerable attention. The issues most often come up in the context of standard-essential patents. However, some FRAND commitments have been undertaken for patents that have not been formally declared as standard essential. In this paper, we consider the development of FRAND-encumbered patents outside the context of a standard-setting organization and the policy issue of whether injunctive relief should apply equally to owners of SSO FRAND-encumbered patents and non-SSO FRAND-encumbered patents. The current legal and economic debate has not explored with much depth the effect of a policy that treats FRAND commitments that are made in the context of an SSO differently from those outside of an SSO.