Respect for the principle of objective good faith in negotiations, the duty of procedural loyalty, and the burden of proof regarding FRAND elements

Abstract

The increasing judicialization of disputes involving Standard Essential Patents (SEPs) has shifted the focus of legal debate beyond the mere assessment of patent infringement, placing greater emphasis on the parties’ conduct during negotiations for licenses on Fair, Reasonable, and Non-Discriminatory (FRAND) terms. Against this backdrop, this article examines whether objective good faith constitutes the underlying principle capable of simultaneously defining the parties’ negotiation duties and the allocation of the burden of proof in FRAND disputes. It argues that objective good faith operates as a unifying framework connecting FRAND negotiations, procedural conduct, and the dynamic allocation of evidentiary burdens. Building upon the interaction between good faith in negotiations and duties of procedural loyalty, the article seeks to demonstrate that the effectiveness of the FRAND framework depends upon the existence of minimum standards of conduct applicable both during licensing negotiations and throughout subsequent judicial proceedings. It further contends that the allocation of the burden of proof should reflect each party’s role in the formation and documentation of the negotiating relationship. By examining the impact of these duties on evidentiary production, the assessment of party conduct, and the granting of judicial remedies, the article proposes an integrated approach to the substantive and procedural elements that structure the FRAND regime.