tag:blogger.com,1999:blog-5202549570150301909.post4358888749529650491..comments2024-03-15T00:21:23.406-07:00Comments on Comparative Patent Remedies : Will the German Courts Ever Tell Us What a FRAND Rate Is?Thomas Cotterhttp://www.blogger.com/profile/07145440504421320263noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5202549570150301909.post-16717885444005340472016-01-06T15:12:39.038-08:002016-01-06T15:12:39.038-08:00Thanks for your comment. You're right, the ra...Thanks for your comment. You're right, the rate is only a component of FRAND terms. What I meant to convey, not very artfully I now see, was that we still don't know yet what methodology the German courts would use to determine FRAND terms. Would they apply the same considerations used to determine reasonable royalties in non-FRAND cases, would they consider some of the apportionment techniques that the courts in the U.S. and Japan have used in recent FRAND cases, would they think it good or bad for the patent owner to obtain some portion of the value of the standard, and so on. It will be interesting to find out. The article by Herrmann and Manley discusses some thoughts on these matters as expressed by two prominent German judges last year in a presentation, so maybe that gives us a clue where matters will go.<br /><br />I hadn't thought about the term "FRAND encumbered" as possibly having a negative connotation . . . maybe we do need a better or at least more neutral term. Will have to think about that. Thomas Cotterhttps://www.blogger.com/profile/07145440504421320263noreply@blogger.comtag:blogger.com,1999:blog-5202549570150301909.post-43469979415958131732016-01-06T14:41:50.984-08:002016-01-06T14:41:50.984-08:00Thanks for your post. I believe you've fallen...Thanks for your post. I believe you've fallen in to the common misconception that FRAND = rate. It doesn't. FRAND = terms, of which rate is a component. With that understanding, you can see why courts are not telling us what FRAND rates are, but are rather determining whether the terms are FRAND.<br /><br />Another clarification, I am not a fan of the phrase "FRAND encumbered SEPs" as in my mind it minimizes and diminishes their importance. FRAND is not an encumbrance, i.e., it is not a burden or impediment, rather it is an assurance that the patent holder will license its standards essential patents on terms that are fair, reasonable, and non-discriminatory. That said, I enjoy your writings on FRAND-assured Essential Patents.Anonymoushttps://www.blogger.com/profile/05492780618447313333noreply@blogger.com