AIPPI-Japan on the IP High Court's Samsung v. Apple Decision

Last month Japan's IP High Court published the English-language version of its May 2014 judgment in the Samsung v. Apple FRAND litigation.  I published my initial thoughts on the court's decision here.  In addition, readers may find interesting an article by the Secretariat of AIPPI-Japan titled Epochal Rulings on FRAND Terms Rendered by the Intellectual Property High Court of Japan (Samsung vs. Apple), published in the July 2014 issue of AIPPI--Journal of the Japanese Group of AIPPI (pp. 183-89).  (As far as I can tell, the article is not available online, but only by subscription to the journal.  If you're interested in Japanese IP law, though, it's worth considering a subscription.)  The article recounts the court's reasoning for denying Samsung an injunction but allowing it recover a reasonable royalty for the infringement of the SEP in suit, as well as its methodology for calculating that royalty.  

On this last issue, as I noted in my post last month, although I generally do not think it's a good idea to calculate FRAND royalties simply by dividing (what is believed to be) the aggregate value of all the relevant SEPs by the aggregate number of the relevant SEPs--according each SEP an equal weight, in other words--this is what the court did when it stated that "no evidence has been submitted which proves that the contribution of the Patent to the UMTS standard is higher than other essential patents. . . .  Based on the above, it is reasonable to determine, based on the evidence submitted in this court action, that the contribution of the Patent to the UMTS standard is equivalent to other essential patents."  The AIPPI-Japan article briefly discusses this issue toward the end of the paper, stating that "According to the statement in the judgment, the calculation may not be made simply by using the number of essential patents depending on the allegation and proof of the particulars of essential patents.  However, as it is assumed that making such allegation and proof would be difficult in reality, the same kind of determination as above would be rendered in cases involving standard-essential patents."  If the authors are correct, then maybe dividing an aggregate value by the number of patents will become the general rule for valuing SEPs in Japan--for better or worse.