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The Microsoft v. Motorola cases in U.S. federal court and transformative developments in enforcement activity by the European Commission antitrust authorities have created a new dynamic intersection between competition and intellectual property law. This legal juncture focuses on a patent holder’s “reasonable and non-discriminatory,” or RAND, commitments to standard setting organizations. These organizations play a vital role as global platforms for innovation, partnerships, creation of efficiencies, and reduction of costs through agreement on standards across borders. How courts, scholars, and regulators interpret RAND language and enforce the agreements influences the distribution of liability between parties, the commercial incentives to develop technologies and participate in collaborative standards, and ultimately the continued viability of international standard setting regimes. This Note analyzes emerging quantitative and qualitative understandings of RAND and makes two connected, resulting contentions. First, it argues that any legal framework consistent across judicial and regulatory spaces must promote a flexible model for licensing negotiation that properly considers the incentives of standard essential patent holders as it binds them to license at fair rates. Second, it considers opportunities for reconciliation between the developing regimes for license negotiations in the United States and the European Union and asserts that convergence in practice should motivate further evolution of this crucial cross-border intersection of market regulation, law, and technological innovation.
