What types of contracts does AMLEGALS handle?

AMLEGALS provides comprehensive contract advisory across 43+ contract types including Technology contracts (SaaS, AI/ML, Cloud Services), Data Privacy agreements (DPAs, DPDPA compliance), Commercial contracts (MSAs, Supply, Distribution), IP & Licensing, Employment agreements, and International Trade contracts.

What is the TCL Framework for contracts?

The TCL Framework is AMLEGALS proprietary approach that examines every contract through three lenses: Technical (understanding the operational realities), Commercial (aligning business objectives), and Legal (ensuring compliance and risk mitigation). This integrated approach ensures contracts that work in practice, not just on paper.

Does AMLEGALS handle DPDPA-compliant contracts?

Yes, AMLEGALS specializes in DPDPA-compliant contracts including Data Processing Agreements, Cross-Border Transfer Mechanisms, Data Sharing Agreements, and Consent Management frameworks. Our Vibe Data Privacy™ framework ensures comprehensive compliance with the Digital Personal Data Protection Act, 2023.

Can AMLEGALS help with AI and technology contracts?

Yes, AMLEGALS has dedicated expertise in AI/ML Contracts, AI Governance agreements, AI Training Data Licensing, SaaS Agreements, Cloud Services agreements, and System Integration contracts. We address emerging issues like algorithmic accountability, model ownership, and AI liability allocation.

What does FRAND mean?

FRAND (Fair, Reasonable, and Non-Discriminatory) describes the terms on which SEP holders commit to license patents essential to standards. The meaning is deliberately undefined, allowing flexibility but creating disputes. Fair and Reasonable address royalty levels—often assessed through comparable licenses, apportionment of total royalty burden, or value contribution analysis. Non-Discriminatory requires similar treatment for similarly situated licensees but does not require identical terms for all. FRAND commitments are typically made to standard-setting organizations and enforceable by implementers as third-party beneficiaries.

How are FRAND royalties determined?

Courts and arbitrators use various methodologies: Comparable licenses analysis examines royalties in similar licenses, adjusting for differences. Top-down approaches start with aggregate reasonable royalty for all SEPs in a standard, then apportion based on patent share. Bottom-up approaches assess incremental value of patented technology over alternatives at time of standard adoption. Courts increasingly require that rates reflect patent value rather than standard value, excluding hold-up premium from standard adoption. No single methodology dominates—multiple approaches are often used as cross-checks.

Can SEP holders obtain injunctions?

Injunction availability varies by jurisdiction. The EU Huawei v. ZTE framework permits injunctions if the implementer is not a "willing licensee"—SEP holders must first make FRAND offers, and implementers must engage in good faith. UK courts have granted FRAND-determining injunctions requiring worldwide portfolio licensing. US courts apply eBay factors, often denying injunctions against willing licensees given ongoing royalty adequacy. Indian courts have not definitively established SEP injunction standards but may follow similar willing licensee analysis. Competition law may additionally constrain injunction seeking as potential abuse of dominance.

What is a patent pool?

Patent pools aggregate SEPs from multiple holders for joint licensing, offering implementers one-stop licensing for standard implementation. Pool advantages include: reduced transaction costs, balanced royalty rates, essentiality verification, and litigation avoidance. Examples include MPEG LA (video codecs), Via Licensing (audio), and various 4G/5G pools. Pool participation involves: essentiality review, royalty allocation, license grant to pool, and compliance with pool rules. Competition authorities generally approve pools meeting certain conditions (essentiality, non-exclusivity, FRAND terms). Alternative to bilateral licensing—not mandatory participation.

Standard Essential Patents | FRAND Licensing India | SEP Disputes

Overview

Standard essential patents (SEPs) occupy a unique position in patent law. When patents become essential to implementing industry standards—telecommunications protocols, video codecs, wireless connectivity—they acquire leverage that regulators and courts have deemed requires special treatment. Patent holders who participate in standard-setting typically commit to license on Fair, Reasonable, and Non-Discriminatory (FRAND) terms, but determining what FRAND means in specific licensing negotiations remains contentious.

The tension at the heart of SEP licensing is fundamental: standard essentiality creates significant patent value (implementers must license to be interoperable) while FRAND commitments constrain how that value can be captured. SEP holders seek to maximize returns on R&D investments. Implementers seek to minimize royalty burdens. Standard-setting organizations try to balance innovation incentives against standard adoption. Competition authorities scrutinize conduct for hold-up and hold-out behavior.

SEP licensing intersects multiple legal domains: patent law determines infringement and validity; contract law governs FRAND commitments; competition law constrains patent holder conduct; and procedural law addresses injunction availability and forum selection. Successful navigation requires understanding how these domains interact and how different jurisdictions approach SEP disputes.

Key Considerations

Essentiality Determination

Analysis of whether patents are truly essential to standard implementation or whether alternatives exist.

FRAND Commitment Scope

Understanding the scope and nature of licensing commitments made to standard-setting organizations.

Royalty Determination

Methodologies for calculating FRAND royalties including comparable licenses, top-down, and bottom-up approaches.

Negotiation Conduct

Framework for good faith SEP negotiations avoiding hold-up and hold-out allegations.

Injunction Availability

Circumstances under which injunctive relief is available against willing licensees.

Portfolio Licensing

Structuring licenses across patent portfolios including cross-licensing and patent pool participation.

Applying the TCL Framework

Technical

SEP licensing requires deep technical understanding. Essentiality analysis involves mapping patent claims to standard specifications—technical work determining whether implementation necessarily practices the patent. Validity challenges require understanding prior art and claim construction. Royalty base determination requires understanding technical value contribution. Non-essential alternatives and design-arounds require technical analysis. Technical experts are essential for SEP disputes.

Commercial

SEP licensing involves substantial commercial stakes. Telecommunications, video, and connectivity standards generate billions in licensing revenue globally. Commercial considerations include: portfolio positioning (building or acquiring SEP portfolios for offensive or defensive purposes); licensing program design (bilateral vs. pool, component vs. device-level); and strategic litigation (establishing or avoiding precedents). Business models range from pure licensing (Qualcomm, Ericsson) to cross-licensing among implementers.

Legal

SEP disputes invoke multiple legal frameworks simultaneously. Patent law determines infringement and validity. FRAND commitments are contractual—standard-setting organization IPR policies create third-party beneficiary rights enforceable by implementers. Competition law (Competition Act, 2002 in India; Article 102 TFEU in EU; Sherman Act in US) constrains conduct—excessive royalties, refusals to license, and tying may constitute abuse of dominance. Global litigation strategies must account for varying approaches across jurisdictions to injunctions, FRAND determination, and competition analysis.

“

"Standard essential patents create value through network effects—but FRAND commitments constrain value capture. Successful SEP strategies navigate this tension through careful analysis of essentiality, thoughtful royalty positioning, and documented good faith negotiation."

Anandaday Misshra

Managing Partner, AMLEGALS

Common Pitfalls

Overassertion of Essentiality

Claiming essentiality for patents that are not truly necessary for standard implementation undermines credibility and may violate IPR policies.

Bad Faith Negotiation

Conduct suggesting unwillingness to license or accept a FRAND license can result in adverse legal findings.

Royalty Stacking Ignorance

Setting rates without considering cumulative burden of all SEPs for a standard invites competition law scrutiny.

Injunction Misuse

Seeking injunctions against willing licensees may constitute abuse of dominance and result in competition sanctions.

Jurisdictional Inconsistency

Pursuing inconsistent positions in different jurisdictions creates legal and reputational risks.

SEP/FRAND Legal Framework

SEP licensing in India operates within patent, contract, and competition law frameworks. The Patents Act, 1970 governs infringement and validity. FRAND commitments made to standard-setting organizations (IEEE, ETSI, ITU) create contractual obligations. The Competition Act, 2002 addresses abuse of dominance—the CCI has jurisdiction over SEP-related competition concerns. Indian courts have addressed SEP issues in cases involving telecommunications patents. Globally, significant precedents from Europe (Huawei v. ZTE), US (eBay, various Federal Circuit decisions), and China shape expectations. Patent pools (Via Licensing, MPEG LA, HEVC Advance) offer alternative licensing mechanisms. Jurisdictional competition for SEP disputes intensifies as different forums offer different advantages.

Practical Guidance

Verify essentiality claims through independent technical analysis before licensing or disputing.
Document negotiation conduct carefully to demonstrate good faith.
Consider multiple royalty determination methodologies to support FRAND positions.
Evaluate patent pool membership as alternative to bilateral licensing.
Monitor global developments—SEP law evolves rapidly across jurisdictions.
Coordinate multi-jurisdictional strategy where disputes span multiple countries.

Frequently Asked Questions

Related Practice Areas

Intellectual Property Competition Law Technology & IT

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