A recent article written by two US patent attorneys, Stephen Schott and Richard C. Hsu, highlights the recent discussion about the risks of applying the fair, reasonable and non discriminatory (FRAND) royalty rates, usually awarded by the US courts for standard-essential patents, to patents that are not essential to a standard.

According to them, for patent owners, this would transform the U.S. patent system from a “winner-takes-most” to a “winner-takes-little” system by substantially decreasing the damages available for the small percentage of patents that are successfully asserted. Of greater concern, this would decrease the incentives for investing in innovation.

The article concludes that the possible application of the FRAND damages calculations to non-SEPs would result in an even greater accrual of technology aggregators’ rewards.