FRAND / RAND patents

Question

From what I understand, FRAND (fair, reasonable, and non-discriminatory terms) and RAND (Reasonable and non-discriminatory terms) patents are also patents, and the original inventor has to license them at a reasonable rate. But from what I understand, those still have to be licensed, is that correct? Anyone using those patents has to be a reasonable sum to use those patents?

If so, how can Microsoft and Apple appear to be asserting FRAND/RAND defenses against their competitors and avoid paying license fees for these FRAND/RAND patents? Shouldn't they be paying the nominal license fee involved?

On the flip side of this, Microsoft and Apple (well, Microsoft at least) are also aggressively pursuing licenses from other smartphone makers for their own patents. I realize that some of their patents aren't FRAND/RAND, but given that their technology has to be used in end-user products these days - not because they're the best, but because they have become end-user standards - shouldn't there be some sort of reasonable licensing for the patents that they are asserting as well? (Cases in point: Microsoft's FAT file system patents and Apple's touch-to-zoom patent.)

Answer 1

Sam- FRAND and RAND are types of licensing schemes, not types of patents. So any patent may be licensed under (F)RAND terms if the owner of the patent wants to do so.

For example, many standards bodies require all members to agree to license patents that cover the standards under (F)RAND terms to other members. Some require all members to agree to license them to anyone (not just members) under (F)RAND terms. And so on. The key theme is that someone has to agree to license their patents under (F)RAND, and exactly which patents they agree to license, who they agree to license to, etc. can vary a lot.

Without trying to dive into specific questions about specific lawsuits, patents that have been offered under (F)RAND can still come into litigation in various ways, including but not limited to:

• The specific "reasonable and non-discriminatory" terms may still be very specific, and violated. ("reasonable," in particular, has no specific/globally-accepted definition, though various standards bodies or relevant legal systems may define it in specific situations.)
• The party being sued may not be a member of the standards body, or otherwise not qualify to receive the license on RAND terms.
• The patent holder may not be party to the standards body; e.g., a troll who isn't a member of a standards body is not obligated to offer their patents on the same (F)RAND terms as members of the standards body would be.

The Wikipedia article on this topic, by the way, is not too bad and may be a useful starting point for further reading.

The second part of your question is a bit vague, but it sounds like what you're asking (to some extent) is "shouldn't people who have patents on really key, central, underlying technology have to license patents over those technologies on RAND terms"? Generally speaking, at least in the US, the answer is "no" - patents are a legally granted monopoly, and so in many ways aren't constrained by antitrust law. It's a pretty arcane area of the law, but a decent summary of the key case (in re Independent Services Organization) can be found here.