.... is (maybe not) the question: WHO is best suited to manage SEPs FRANDs terms may in fact be the actual key point of the whole matter.
The usual approach around Europe - despite the different national and case law nuances - seems to be well established around the idea that the only possible model for a good #SEP management is what we could define as a "Court helped" bundle of individual licenses between the #patent owner and each possible infringer/licensee. This idea implies that - for each SEP - there could be a lawsuit (and/or a negotiation) for each patent owner with each potential infringer/licensee. If we want to play the game within this frame, no matter which specific solution we may imagine, we will have to face high transaction costs. Also, this model has the downside of totally excluding SDOs and SSOs from playing their part in finding possible solutions to the SEPs issue, thus ignoring a quite important aspect of the role those organization play in the SEP world. SDOs and SSOs contribute in fact to the market and in general to the technical progress, but it's rather clear that they do this in quite a "sensitive" way, at least as far as the free competition is concerned.
One could in fact wonder: do SDOs and SSOs help SEPs' owners in getting a market power higher than the actual technical value of the corresponding inventions? Most of times they do, otherwise the whole FRAND construction would not even exist. So: in these cases, are SDOs and SSOs cartels or - at least - are they contributing to create and uphold a (collective) dominant position in the corresponding market? And then (should this be the case), are those cartels or dominant position useful for the market? In case they are (as I personally think they are), would their action actually be much more pro-competitive if they assumed also a role in the collective negotiation of the SEPs involved in the standard they create and manage? And, finally, if the answer also to this last question is "yes", is there something that Courts and #Antitrust authorities could do to "help" (in the sense of "induce") SDOs and SSOs in becoming more active on this side, assuming the role of collecting society for SEPs' owners?
This "empowering" approach would have its flaws for sure (and I'm pretty sure SDOs and SSOs would not like it very much), but it would have at least one (and big) benefit: shifting the transaction costs from the perspective of an ex post remedy in the relationship between each SEP owner and each infringer/licensee to the perspective of an ex ante management of the relationship between SEP owners and the SDO/SSO, which should bring advantages in terms of reduction of the total costs and burdens of the system. Another advantage could be a lower risk of having different license rates and terms (or at least general criteria) for different licensees due to different judicial decision standards and case law, since we would have a "one SDO one #FRAND standard" scenario (with the big advantage that the potential infringer/licensee could know the criteria for a #license BEFORE engaging in lawsuits and/or negotiations).
This "intermediate" solution - on the other hand - would be in my opinion more flexible (and cheaper in terms of public budget) than the proposal of creating public collecting societies for SEPs (similar to the German GEMA or the Italian SIAE for copyright) or of involving antitrust authorities or patent offices (or any other public agency) in the administration of FRANDs.
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