In other cases, competition authorities have issued decision in which they ruled that for a patent owner, seeking injunctive relief for essential patents can be an illegal act as such, considering that such conduct further increases the risk for hold-up. While it has been argued that hold-up is a theoretical risk only, and does not manifest itself in 'real world' scenarios, this paper discusses a number of recent, seminal court cases in which the judge determined that for essential patents, fees were demanded that wildly exceeded what the court ultimately deemed to be a FRAND royalty rate. Many standard setting organisations have “FRAND” patent policies in place that aim to avoid hold-up, among other things. One of the widely recognized risks here is patent holdup, where the patent owner demands inflated prices, much beyond the value of their specific patented technology, knowing that implementers are locked in and have no other choice than to obtain a license. But the owners of patents that are necessary required in order to implement a standard (“essential patents”) obtain a particularly powerful position. Patented technologies may add significant value to technical standards. By revealing the central role of industryĪssociations in defining property arrangements in transnational commons such as the radio spectrum, this research seeks to contribute to the debate about the nature and scope of private transnational governance of common goods. These findings are derived from the analysis of four case studies, which trace the development of operational rules in five radio frequency bands across time. When industry actors agree these common rules of management, and reinforce them with common rules of exclusion, they are more likely to negotiate operational arrangements based on principles of common exclusive property rather than individual exclusive property in the transnational radio resource. They reduce uncertainty in these complex situations by increasing participation in decision-making and by developing mechanisms of information exchange and mutual monitoring in industry associations. In addition, this study finds that industry actors are able to define common operational rules to access and use a transnational frequency pool even in complex situations of heterogeneous economic interests and heterogeneous technology capabilities. The transnational radio resource, by means of negotiating the configuration of technology systems used to extract value from the resource. service operators and system developers – define rules of access and rules of use in Instead, this study finds that private actors in the electronic communications industry – i.e.
This study demonstrates that the presence of a public actor – even one with established authority at transnational level such as the Commission of the European Union – cannot fully explain variations in the configuration of property arrangements in the radio resource. It is a transnational resource that exhibits properties of other common pool resources: a) high rivalry in consumption and b) difficulty in excluding non-contributing beneficiaries from its use. The radio spectrum represents the totality of radio frequencies used for wireless communications around the world. The thesis asks what determines variation in operational and collective choice property arrangements in common pool resources such as the radio spectrum. This thesis investigates how collective action is achieved in the governance of transnational common pool resources, taking the example of the electromagnetic radio spectrum as a global common.