But even if all companies played by the FRAND rules, there would still be fundamental unfairness in the system, not unlike one that FRAND proponents point out. That unfairness lies in the fact that FRAND or not, unscrupulous incumbents will relentlessly seek any 'redress' against newcomers. In other words, they will hammer you with any patent they think they have a good chance of flattening you with. This goes a long way to furthering their ability to form cartels, especially among the big incumbents with thousands of patents.
As an aside, I also find the cognitive dissonance exhibited in these debates quite entertaining. On the one hand we have the contingent that proclaims that "GREED is good!", a la Mr. Gekko. Nice. If they can prevent you from practicing your very own idea, they would. But then, the very same contingent all of a sudden grows a moral backbone when they resort to the arguments: "But you stole my ideaz?!?".
I reject any notion that FRAND regime is special. If you're not invited to be a party to a standard, then create your own. The 'can't work around' argument doesn't hold water.
The same exact, 'can't work around' argument is often very applicable to any patent discussion. At least in the case of copyrights, we have the merger doctrine. In the case of patents, if someone managed to lock up fundamental methods, good luck. In fact, the system is so screwed that it's possible for someone to lock up methods that they didn't even discover.
Herein lies another problem however: creating your own standard would not absolve you of any territorial squabbles. In fact, in that case, and now being outside the umbrella of FRAND, unscrupulous incumbents will try to make this quite impossible for you, with the patents supporters, and particularly the FRAND crowd uttering nary a whisper.
