PMAC launches public consultation on draft FRAND Guidelines Discussion Paper

The Patent Mediation and Arbitration Centre (PMAC) has launched a public consultation on its draft discussion paper (Discussion Paper) for the ‘Guidelines for Dealing with FRAND Disputes in Mediation, Arbitration, Expert Determination and Hybrid Formats’ (Guidelines). PMAC is an Alternative Dispute Resolution (ADR) function that sits alongside the UPC court system and Aleš Zalar, the director of PMAC, has indicated there is a real interest in attracting Standard Essential Patent (SEP) and FRAND disputes to PMAC (although it does not appear that any SEP matters have yet been referred to PMAC). Although PMAC is a companion system to the UPC court, it is also able to offer ADR services to non-UPC disputes and it will be interesting to see the level of interest in this service.

In accordance with the final procedural rules for arbitration, mediation and expert determination, the publication of which were reported in our blog series on PMAC here, a PMAC FRAND Guidelines Working Group was set up to develop the Guidelines for dealing with FRAND disputes. The Guidelines will propose a non-binding, descriptive aid to parties and neutrals to assist with deciding whether ADR is suitable and how to structure the proceedings in FRAND disputes. They will outline best practices, options and considerations “in such a way as to allow parties and neutrals to draw on lessons that have been learned from FRAND disputes in the past”. As such, the Guidelines will be regularly reviewed and updated to take into account updates in FRAND related caselaw and dispute resolution.

The PMAC has indicated that nothing in the Discussion Paper should be regarded as settled at this stage: it is intended to invite feedback on the proposed structure, as well as on any topics stakeholders consider should be added. Comments and suggestions must be submitted to the PMAC contact email by 26 October 2026. After the Working Group has considered the responses, it will continue to work on the draft Guidelines with a view to issuing a further consultation on the draft in due course.

Discussion Paper outline for Guidelines

The Discussion Paper outlines all the areas to be covered by the Guidelines, including arbitration, mediation, and expert determination in FRAND disputes. It recognises the difference between FRAND disputes and other patent disputes, highlighting the importance of defining the scope of the dispute and outlining the ADR menu available for FRAND disputes before PMAC. It is noted that “the procedures are modular and may be combined”, exemplifying the use of hybrid Med-Arb proceedings or the use of expert determination within an arbitration framework. 

The Discussion Papers recognise the importance of maintaining confidentiality in FRAND disputes. Interestingly, it also encourages the parties to allow anonymised publication of decisions so that a body of case law can be built up. On selection of neutrals, the Discussion Paper notes that this will depend on the nature of the dispute and may require economic expertise and/or greater technical knowledge of the technology involved. 

The arbitration section of the Discussion Paper focuses on the practical management of FRAND disputes. It indicates the potentially differing approaches available to case management, such as a “FRAND first” approach – i.e. dealing with the terms of the FRAND licence first as that is what the parties really care about, and setting aside issues of patent validity and infringement (potentially avoiding the need to deal with this entirely if the parties agree a FRAND licence). The Guidelines will remain methodology-neutral, but will outline examples of different approaches to portfolio valuation, rate setting and determining essentiality. It is worth noting that the UPC itself has yet to set FRAND rates directly but PMAC may offer an alternative means to achieve this.

The mediation section of the Discussion Paper discusses both mediation and hybrid Med-Arb proceedings. Mediation can be a useful first stage to ADR, with arbitration to follow if the parties do not reach a resolution of the whole dispute. Even where mediation does not end the dispute, it can help to narrow the issues to be decided at arbitration, or help the parties agree on the format that the arbitration should take. 

The Discussion Paper also envisages expert determination as a useful mechanism for specific FRAND issues, as “a flexible mechanism for discrete legal, factual or technical issues, used either standalone or in support of a PMAC mediation or arbitration”. This could include essentiality assessments, SEP portfolio analysis, royalty rate determinations or methodology disputes. Determinations are issue focused and will be binding unless agreed otherwise. There will be the possibility to appoint technical, economic, or multiple experts depending on the issue. 

One interesting feature of PMAC is that, where there are parallel UPC proceedings, the parties can request that the UPC court issues an enforceable order to reflect the outcome of the PMAC ADR proceedings. The Discussion Paper notes, however, that patents cannot be revoked or limited with erga omnes effect by the arbitral tribunal – any decision on patent validity will only have inter partes effect, unless an arbitral award by consent is made or a settlement is agreed, in which case the parties may jointly agree to apply to the UPC to obtain an enforceable decision of the Court. 

The consultation offers stakeholders an important opportunity to shape a flexible ADR framework that could make PMAC an increasingly significant forum for resolving FRAND disputes. While market participants have welcomed PMAC as an alternative to FRAND related litigation, it remains to be seen in what way it can establish itself as a go-to forum for SEP disputes. This will particularly depend on the preference of SEP holders given they are usually the plaintiffs in court proceedings. There have been offers by other bodies to resolve SEP/FRAND disputes out of court; some of the mechanisms are connected to courts – for instance, the Munich District Court, which hears more SEP cases than any other court in Europe, has been offering a mediation procedure in parallel for some time. Resolving SEP/FRAND issues in court can be an efficient means of resolving disputes in many cases and it will be largely up to plaintiffs whether and how they are willing to pursue alternative routes.