Access for All v. License to All: A Response to Richard Vary

Abstract

This short paper responds to the criticisms made by Richard Vary on observations that I have made in one of my papers on the issue of whether, as a result of their FRAND commitment (or their obligations under EU competition law), standard-essential patents (“SEPs”) holders are under an obligation to grant FRAND licenses to all manufacturers implementing their patents or whether they can select the level of the supply chain where they grant a FRAND license. In my observations, I argued that, in the context of its licensing dispute with Daimler and some of Daimler’s component suppliers, Nokia has so far refused to grant a FRAND license to component suppliers and that for these suppliers, operating under “have-made” rights, as proposed by Nokia in its so-called “Tier-1” license offer, does not amount to being licensed under Nokia’s SEPs. In a paper, Mr. Vary criticizes my view and seeks to convince the reader that the licensing needs of component suppliers are perfectly satisfied under Nokia’s Tier-1 “license” offer. In the present response, I explain the reasons why the licensing needs of component suppliers are not fulfilled under Nokia’s approach, which explains why none of these suppliers have accepted these offers. Have-made rights do not equate a license and nothing in Mr. Vary’s paper proves the contrary.