Professor John Cross explores the meaning of 'fairness' in FRAND

Think about how often you use a USB port. As you’re saving items to a flash drive or charging your phone, do you ever think about the fact that in order for this technology to work with a variety of devices and brands, it had to be standardized? 

Standard-setting organizations agree to certain standards to make technology accessible and functional to wide audiences. But in some cases, those standards use patented technology. If a party who sets a standard also owns a patent required to use that standard, the situation can raise issues under antitrust law. One solution is often called “FRAND”: the patent owner must agree to license the technology on Fair, Reasonable and Non-Discriminatory terms. 

That’s where recent research from John Cross, Grosscurth Professor of Law at Brandeis Law, comes in.

Cross is focusing his work on the definition of the “F” in FRAND: “fair.” What does fairness mean in this context?

“I think it’s really designed to pick up on notions of fair competition,” he says, adding that there could also be some antitrust law concerns.

The addition of “fair” is relatively new to the FRAND acronym, Cross says. Ten to 15 years ago, industries were more focused on RAND.

There’s a general belief that those people who are most technologically savvy should be able to define a standard. This should allow for the best product.

Cross, an international expert in IP law, has also recently published an article on the trademark implications of developing technology that might seem at home in a sci-fi movie: digital flavors. 

Much like music and movies have been digitized, researchers are exploring ways to digitize flavors and odors, allowing them to be transmitted via email or electronic devices.

Cross’ article, “Trademark Issues Related to Digitalized Flavor,” is published in Volume 19 of the Yale Journal of Law and Technology.

The article “analyzes various trademark law issues that may arise, such as whether a party can obtain trademark rights in a digitalized flavor as well as whether others can borrow an existing flavor to market their goods or services,” states the article’s abstract.