FRAND stands for fair, reasonable and non-discriminatory. It describes the terms on which the owner of something others cannot do without must make it available to anyone who asks. Originally that meant a patent written into a technical standard; today it can also mean platform data or access. The idea answers a lock-in problem: once an industry adopts a standard, or a market settles around one gateway, the owner of the bottleneck could refuse access or name any price. A FRAND obligation removes both options without fixing a number. Born as a voluntary pledge in telecoms standard-setting, it became a question for competition courts and entered European Union platform law in 2022, where it now governs how Google must hand search data to rivals.

How a FRAND commitment works

A standard-essential patent (SEP) is one that any compliant product must infringe. Standards bodies cannot design such patents out, so they extract a promise instead. Under clause 6.1 of the intellectual property rights (IPR) policy of the European Telecommunications Standards Institute (ETSI), whose specifications underpin 2G, 3G and 4G mobile networks, the owner of disclosed essential IPR is asked to undertake in writing that it will grant irrevocable licences on FRAND terms. It may refuse, in which case ETSI can rework the standard or halt the work, according to a 2012 study of the policy.

The undertaking names no price, so courts police the bargaining. In Huawei v ZTE, decided on July 16, 2015, the Court of Justice of the European Union (CJEU) held that a dominant SEP holder seeking an injunction against a willing implementer risks abusing its position under Article 102 of the Treaty on the Functioning of the European Union. It must first flag the infringement and make a written offer stating the royalty and its calculation. The implementer must respond diligently, make a prompt counter-offer if it disagrees and, once that is rejected, provide security and an account of past use.

Rates come from litigation. Motorola sought 2.25% of the end-product price from Microsoft for patents essential to the IEEE 802.11 Wi-Fi and H.264 video coding standards, about $4.50 on a $199 Xbox. On April 25, 2013, Judge James Robart set 0.555 cents per unit for H.264 and 3.471 cents for 802.11, the first such determination by a US court, according to the Essential Patent Blog.

Non-discrimination is narrower than it sounds. On August 26, 2020, the UK Supreme Court held in Unwired Planet v Huawei that the limb is general rather than hard-edged: a rate reflecting a portfolio's value stays FRAND even if an earlier licensee paid less. Unwired Planet therefore did not have to match a 2016 Samsung licence, according to law firm Bristows, and English judges may set global licence terms.

Origin and evolution

ETSI's first attempt failed. A 1993 policy featuring automatic licensing and advance disclosure of royalty rates drew a complaint to the European Commission from the Computer and Business Equipment Manufacturers' Association, and ETSI's General Assembly voted to abandon it on July 22, 1994, according to a paper published by law firm Cravath, Swaine & Moore. An interim policy built on a bare FRAND undertaking followed that November, according to Karl Heinz Rosenbrock, ETSI's director-general from 1990 to 2006.

The web chose differently. A World Wide Web Consortium (W3C) draft of August 16, 2001 would have admitted RAND-encumbered technology. Open-source developers warned that fees would split the web, and W3C adopted a royalty-free policy on February 5, 2004. The Commission then sent Samsung a Statement of Objections over SEP injunctions on December 21, 2012.

Platform law followed. The Digital Markets Act (DMA), Regulation (EU) 2022/1925, entered into force on November 1, 2022. A separate Commission proposal of April 27, 2023 for EU-level FRAND determination passed Parliament on February 28, 2024 but was withdrawn on October 6, 2025.

FRAND in platform law

Two DMA provisions use the term. Article 6(12) requires gatekeepers to apply FRAND general conditions of access for business users to their app stores, search engines and social networks, and to publish those conditions, with an alternative dispute settlement mechanism, for the Commission to assess. Japan's smartphone law takes a comparable approach to app review.

Article 6(11) is the one under test. A search gatekeeper must give any rival search engine, on request, FRAND access to ranking, query, click and view data from free and paid search, with personal data anonymised. The DMA explainercovers the wider regime.

A worked example: Google's search data

Google's first dataset, offered from March 2024, stripped out 90% to 100% of unique queries, excluded AI chatbots and drew no meaningful uptake, according to the Commission. Brussels opened specification proceedings on January 27, 2026 and proposed measures on April 16, then adopted a binding decision on July 16, 2026.

The decision turns three words into rules. Price is cost-based: the incremental cost of preparing, storing and transmitting data, plus a return capped at Alphabet's weighted average cost of capital. An extra margin, limited to Google Search's operating margin, applies only in narrow cases and never to small and medium-sized enterprises. Eligibility is objective: two years running an EU search engine, or more than 50 million euros raised if younger, and at least 50,000 average monthly EU users. AI chatbots with search functions qualify. Licences run for up to five years, with data at least seven days old. Use is fenced: no training of general-purpose AI models, no advertising or profiling, and independent audits within six months, then annually.

As of September 2026, template licences and cost estimates are due this month, the finished dataset in November and pricing in January 2027, when sharing should begin. Applications go through a Google Form.

Why it matters for marketers

For search advertisers, FRAND access is a possible route to more inventory outside Google, though research on earlier DMA remedies found American firms better placed than European challengers to exploit new rights. Publishers have a stake because retrieval for grounding is a permitted use, so long-tail click data may influence which obscure pages rival engines crawl.

App marketers meet the idea in store terms. Apple replaces its per-install fee with a 5% commission on non-App Store sales in the EU on October 1, 2026, while the UK Competition and Markets Authority (CMA) has proposed that Apple's steering fees be fair and reasonable.

The concept also sits in ad tech's plumbing. The IAB Technology Laboratory's IPR policy, effective since February 15, 2025, defaults to royalty-free mode. An administrator may instead elect RAND mode before drafting starts, obliging participants to license their "Necessary Claims" on FRAND terms. Prebid ships under Apache 2.0, a licence with an explicit patent grant.

Limitations and disputes

Indeterminacy is the core weakness. With no number in the phrase, Motorola's demand and the court's rate ended up orders of magnitude apart. The Huawei v ZTE record frames the risk both ways: hold-up, where holders extract excessive royalties, and reverse hold-up, where implementers stall to pay too little. England's readiness to set global rates has drawn criticism from judges elsewhere, according to law firm Marks & Clerk. Legislative repair is stuck, with the European Parliament voting on November 25, 2025 to contest the SEP proposal's withdrawal at the CJEU.

Platform FRAND adds fights over price regulation and privacy. Apple objected on July 29, 2026 that the CMA's steering-fee test was price regulation rather than a competition remedy. Kent Walker, Google's president of global affairs, argued on the day of the search decision that European searches would reach "unfamiliar companies" without adequate anonymisation. Damien Desfontaines, a privacy engineer paid to advise the Commission, today published an account of the method that disputes Google's re-identification tests. According to Desfontaines, records containing an entity searched by fewer than 50 users a year are deleted, and locations are coarsened until at least 1,000 signed-in users share a region, device type and language. Sources conflict on paid search: he describes all sponsored results as excluded, while Commission guidance refers to removing paid-result URLs.

Disambiguation

RAND (reasonable and non-discriminatory) means the same thing. The IAB Tech Lab labels its mode RAND while defining the licence in FRAND wording, and the US court in Microsoft v Motorola spoke of RAND where ETSI and the CJEU say FRAND.

Royalty-free is a subset, not an opposite. IAB Tech Lab's royalty-free licence is still granted on FRAND terms, at zero cost.

Fair and reasonable terms is the UK statutory phrase, and it omits non-discrimination. After a breached enforcement order, the CMA can require the designated firm, and invite the other party, to submit final payment offers.

Ordinary commercial terms is the US benchmark. Judge Amit Mehta ordered Google to share certain index and interaction data and to syndicate results and search text ads on terms consistent with its existing syndication business, according to the Congressional Research Service. That is a market reference, not a cost formula. DMA Article 6(7), by contrast, demands interoperability free of charge.

Recent developments

Specification decisions carry no fine, but the Commission separately fined Google 890 million euros on July 23, 2026over self-preferencing and Play steering, and Google is weighing an appeal before a September 21 deadline. In the US, Google appealed on January 16, 2026 and asked the D.C. Circuit on May 22 to reverse the ruling. The CMA's first conduct requirement left room for measures on a fair exchange of value with publishers, which the regulator had earlier framed as fair and reasonable use of their content. The next test of what FRAND means in euros is Google's pricing offer, due in January 2027.

Timeline

  • July 22, 1994: ETSI General Assembly votes to abandon its 1993 IPR undertaking after industry opposition.
  • November 1994: ETSI agrees an interim IPR policy based on a FRAND licensing undertaking.
  • August 16, 2001: W3C publishes a draft patent framework allowing RAND-mode working groups.
  • February 5, 2004: W3C adopts a royalty-free patent policy.
  • December 21, 2012: European Commission sends Samsung a Statement of Objections over SEP injunctions.
  • April 25, 2013: Judge James Robart sets RAND rates in Microsoft v Motorola, a first for a US court.
  • July 16, 2015: CJEU rules in Huawei v ZTE, setting negotiation steps before SEP injunctions.
  • April 5, 2017: English High Court delivers the first full FRAND assessment in Europe in Unwired Planet v Huawei.
  • August 26, 2020: UK Supreme Court upholds global FRAND licences and a general non-discrimination standard.
  • November 1, 2022: Digital Markets Act enters into force, including FRAND duties in Articles 6(11) and 6(12).
  • April 27, 2023: Commission proposes an EU regulation on standard-essential patents.
  • February 28, 2024: European Parliament adopts its position on the SEP regulation.
  • March 7, 2024: DMA obligations bind Google; Google begins offering an Article 6(11) dataset.
  • December 18, 2024: IAB Tech Lab approves its revised IPR policy with royalty-free and RAND modes.
  • January 1, 2025: UK digital markets conduct requirement powers come into force.
  • February 11, 2025: Commission work programme announces withdrawal of the SEP regulation.
  • February 15, 2025: IAB Tech Lab IPR policy takes effect.
  • September 2, 2025: Judge Amit Mehta issues US search remedies, including syndication on ordinary commercial terms.
  • October 6, 2025: Commission formally withdraws the SEP regulation.
  • November 25, 2025: European Parliament votes to pursue its CJEU action against the withdrawal.
  • December 5, 2025: Final judgment entered in the US search case.
  • January 16, 2026: Google files notice of appeal against the US search remedies.
  • January 27, 2026: Commission opens Article 6(11) specification proceedings against Alphabet.
  • April 16, 2026: Commission publishes preliminary search data sharing measures.
  • July 16, 2026: Commission adopts the binding search data decision, with cost-based FRAND pricing.
  • July 29, 2026: Apple objects to the CMA's proposed fair and reasonable steering fee test.
  • September 10, 2026: Damien Desfontaines publishes an account of the search data anonymisation method.
  • January 2027: Deadline for Google's final pricing offer; search data sharing due to begin.

Summary

Who: Standard-essential patent holders and implementers, standards bodies such as ETSI, W3C and IAB Tech Lab, courts in the EU, UK and US, and regulators including the European Commission and the UK Competition and Markets Authority. Google is the first platform to have DMA FRAND terms specified in detail, with rival search engines and AI chatbots as the intended beneficiaries.

What: FRAND means fair, reasonable and non-discriminatory. It is a commitment or legal duty to make an essential asset, whether a patent or platform data and access, available to all qualifying applicants on terms that neither exploit nor exclude them, without the phrase itself fixing a price.

When: ETSI built its IPR policy around a FRAND undertaking in 1994. Courts gave it content from 2013 to 2020, the DMA wrote it into platform law in 2022, and the Commission specified search data terms on July 16, 2026, with pricing due in January 2027.

Where: Globally in telecoms and technology standards; in the European Union under DMA Articles 6(11) and 6(12); with comparable but distinct formulations in the UK, Japan and the United States.

Why: Standards and dominant platforms create bottlenecks that others cannot route around. FRAND lets the owner earn a return while preventing it from refusing access or pricing rivals out, although the absence of a defined number leaves every rate open to negotiation, litigation or regulatory formula.