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The broad diffusion of 5G technology, and its incorporation into a hefty catalog of devices and machines, will put more pressure on the nondiscrimination prong of the FRAND commitment. The value of 5G technology to simple consumer electronics (such as home routers) will differ starkly from the value of the same technology to cutting edge equipment (such as for remote surgery). Does a nondiscrimination commitment allow patentees to charge differential royalties for 5G technology in such diverse use cases? Both TCL and Unwired Planet examined the requirements of nondiscrimination only as between companies providing similar products. Going forward, however, judicial and regulatory interpretation of the nondiscrimination requirement in the 5G context will require potentially controversial application of the FRAND commitment across different technological applications. In addition, 5G nondiscrimination debates will strain arrangements within standard organizations themselves. Neither TCL nor Unwired Planet provide guidance for these impending disputes.



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