FRAND News

1.  On Tuesday, the Fifth Circuit affirmed the district court judgment in favor of the defendants in HTC Corp. v. Telefonaktiebolaget LM Ericsson.  Here is a link to the opinion.  Commentary thus far can be found on Bloomberg Law, Law360, the Essential Patent Blog, FOSS Patents, and IP Watchdog.

2. Also on Law360 recently is an article by Jay Jurata and Emily Luken titled DOJ Should Withdraw Improper Intervention in SEP Cases.  The article argues that the DOJ should not intervene in cases involving "disputes between Private, highly sophisticated parties" where there is "no obvious government interest."    

3. Dietrich Kamlah and Jan Phillip Rektorschek have published a paper, titled Recent German FRAND Case Law-Open Questions, in the July/August 2021 issue of the German I.P. journal Mitteilungen der deutschen Patentanwälten (pp. 307-14).  This is certainly worth reading, if you want a good update on these issues, and as the title indicates is in English.  Here is the abstract:

Following the first decision on Sisvel v Haier ("FRAND-Einwand") of the Federal Court of Justice (Bundesgerichtshof, BGH), in which the requirements for a successful defence were raised significantly, subsequent decisions in Mannheim and Munich turned the tide in favour of the owners of standard essential patents (SEPs).  The Regional Court of Düsseldorf has doubts, whether this new case law is still in line with the CJEU's guidance given in Huawei v ZTE and referred a number of detailed questions back to the CJEU.  This referral in a case between Nokia and Daimler concerning mobile communication for connected cars may have resolved many issues, which are currently disputed in various courts in Germany, had it not become obsolete after the case was settled.  Following this decision, the BGH issued a second decision on Sisvel v Haier ("FRAND-Einwand II") and used this opportunity to further explain and expand its rather patentee-friendly FRAND concept.  Before this background, the questions referred to the CJEU remain important and will hopefully be referred again in a new case to provide clear guidance on the right balance of duties between patentees and implementers in FRAND negotiations.

4. CPI Antitrust Chronicle published an issue in July titled "New Madison Revisited," with articles by a variety of commentators.  Although access to the issue appears to require a subscription, some of the papers are available on ssrn or elsewhere, including those by Douglas Ginsburg, Joshua Wright & Camila  Ringeling; Michael Carrier; Jay Jurata and Emily Luken; and Jorge Contreras.