Arnold on a Jurisdictionally Neutral Approach to FRAND

Lord Justice Richard Arnold has published an editorial titled A Jurisdictionally Neutral Approach to SEP/FRAND Disputes?, 57 IIC 613 (2026).  The essay argues that the best solutions to jurisdictional conflict in SEP/FRAND disputes would be, in order, a supranational tribunal; legally enforceable arbitration; and ad hoc agreement to arbitration.  In the absence of any of these, the author argues, “the next best thing would be a jurisdictionally neutral approach,” by which he means that “any court of competent jurisdiction faced with an SEP/FRAND dispute reaches the same conclusion”.  To this end, he identifies three common principles (while noting that the essay does not aspire “to present a fully developed proposal”):  first, that “courts should apply the law which governs the relevant IPR policy” (in the case of ETSI, for example, French law); second, that the provisions of these policies be interpreted to prevent both holdup and holdout; and third, that courts “bear[  ] in mind that a range of terms may be FRAND.”  Lord Justice Arnold expresses surprise that few jurisdictions thus far have undertaken to determine FRAND rates, and thinks that more should do so—and that if they followed the three principles, much of the tension among jurisdictions could be reduced.

This is an interesting piece—short and, as the author states, not intended to present a full development—but useful for thinking through what the core principles really are, and speculating how jurisdictions might converge on similar results if they took all three seriously.  Still, I wonder how much convergence there would be, given differences of opinion in specific cases over which licenses are relevant comparables; the utility of the top-down approach; and other issues that do not arise in every case but can be important in some of them, such as access-to-all versus license-to-all and the use of the smallest salable patent-practicing unit as the royalty base.  Just a few months ago, for example—after the editorial was published—in the Samsung v. ZTE dispute, a Chinese court determined that a six-year FRAND license for the relevant technology would be in the amount of $731 million, while the Munich Regional Court opined that a five-award license would be for $640 million, and the EWHC determined that a five-year license would be $392 million (see my blog post, As Many as Three Incompatible FRAND Judgments Before Breakfast).  Another issue is that, at present, some courts are more receptive than others to issuing injunctive relief in FRAND cases, and that possibility obviously impacts strategy in a big way—so for any convergence to take place, we might need to see a change of perspective on that issue, from one that sees FRAND-committed SEPs as just another kind of patent to one that recognizes, as Lord Justice Arnold states in this essay and has stated previously, that every SEP owner and every SEP implementer is, respectively, a willing licensor or willing licensee, as long as the terms are right.   

In related news, outgoing U.S. Representative Darrell Issa is quoted in MLex as recommending the issuance of an executive order forbidding U.S. courts from recognizing foreign judgments awarding global FRAND royalties or injunctive relief (“Unless there’s a US patent, unless it’s adjudicated by a US court, we are not going to respect foreign [court orders]”).  I’m not sure if there have been cases in which foreign courts have issued injunctions against the use of U.S. patents in the U.S., but Congressman Issa may have in mind the English courts’ practice of compelling implementers to choose between a domestic injunction and acquiescence in the court’s determination of global FRAND royalties.  Another possibility he may have in mind is that a court might award specific performance of the global license it determines to be FRAND (see my May blog post above), which I suppose would have extraterritorial impact even if directed only against a party over whom the court has personal jurisdiction.  Or maybe I'm just missing his point altogether.  In any event, I thank Rochelle Cooper Dreyfuss for bringing this development to my attention.

The $5.72 Billion Jury Award in Taction v. Apple

Readers probably have already heard that on Friday a jury awarded damages in the amount of $5.72 billion in Taction Technology, Inc. v. Apple Inc., No. 3:21-cv-00812-TWR-JLB (S.D. Cal.).  This case has been the subject of one previous Federal Circuit appeal, which resulted in a nonprecedential opinion in August 2025 vacating a summary judgment of noninfringement based in part on an erroneous claim construction.   As the Federal Circuit explained at that time, the patents in suit “share a common specification and relate ‘to tactile transducers that produce bass frequency vibrations for perception by touch,’ with each asserted claim “requir[ing] damping the moving portion’” of the apparatus.  Taction claimed that certain iPhones and Apple Watches with haptic (“the science of enabling interaction with technology through the sense of touch, including, for example, using vibrations”) technology infringed the patents in suit.  

Anyway, the case went to trial this month, and on Friday the jury found that Apple infringed claims 17 and 19 of U.S. Patent No. 10,659,844 and claim 16 of U.S. Patent No. 10,820,117; that Taction proved its damages to be $5,721,961,750; and that the infringement was not willful (so no risk of trebling, at least!).  This is the largest patent damages award in U.S. history—though as others have noted, stratospheric awards like this rarely survive intact, following post-trial motions and appellate review for possible substantive legal errors and/or errors specifically relating to damages calculation.   

I don’t know a great deal yet about the damages issues.  A quick review, however, of the parties’ trial briefs on damages (see here and here), the jury instructions, and a couple of pretrial evidentiary rulings reported on Westlaw (see 2026 WL 2608208 and 2026 WL 2325817) indicate, if I understand correctly, that Taction relied primarily on the “Corsair” license as a comparable, but that the district court excluded the royalty amount in the Corsair license, and the testimony of Taction's damages expert, for failure to adequately apportion the value attributable to the patents in suit in this case.  Taction's September 20 damages brief therefore instead relies on lay testimony that “the cost of ferrofluid required to implement the patented technology in the Corsair product was approximately 20 cents per unit,” and that this cost “is limited to implementing the patented technology and does not relate to the only other technology licensed,” so that "20 cents provides a minimum for a per unit reasonable royalty and, at the very least, provides a data point for the jury to consider in addition to the other evidence":  "[a] party would not pay 20 cents for just one component to implement the infringing technology unless the value that the technology provides exceeds that amount."  Apple counters that without a royalty amount from the Corsair license in evidence, or admissible evidence on how to apportion such a rate, there isn't enough here to justify anything more than nominal damages.  (Apple cites Rex Medical, L.P. v. Intuitive Surgical, Inc., 156 F.4^th 1289 (Fed. Cir. 2025), as precedent for an award of nominal damages, on the ground, contested by Taction, that that case involved “materially identical facts” including a failure to apportion.  For discussion of Rex on this blog, see here.)  Apple further argues that the testimony about the cost of ferrofluid doesn't overcome these problems, because "ferrofluid is not the claimed invention, and a contribution attributable to an unclaimed component is not an apportionment of the patents' value." 

Reports on Bloomberg, Law360, and ip fray provide some further background on the case, including that the plaintiff’s suit is funded by two related litigation financing entities. 

Update:  I should note that it is not immediately obvious to me how you get to $5.72 billion, even if you credit the plaintiff's argument about the cost of ferrofluid being a relevant reference point.  At 20 cents per unit, you'd have to sell over 28 billion units to get to $5.72 billion.  Apple surely sells a lot of iPhones and Apple Watches, but given earth's population of about 8.3 billion people, that would be about 3.44 products per person.  I suppose we will see what other evidence comes out post-trial and on appeal.  

Criminal Enforcement of Intellectual Property in Asia

I recently received a copy of a new edited volume, Criminal Enforcement of Intellectual Property in Asia:  Sources, Significance, and Side-Effects (Kung-Chung Liu & Tianxiang He eds., Oxford Univ. Press 2026).  The book consists of eighteen chapters, ten of which address criminal sanctions for IP infringement in selected Asian jurisdictions (China, Hong Kong, India, Japan, Malaysia, Korea, Singapore, Taiwan, Thailand, and Vietnam).  In addition to an introductory chapter by Roland Moerland, there also are chapters on criminal punishment under the international treaties, on AI, and on comparison and reform, along with chapters on the U.S., the U.K., the E.U., and Germany.  This should be an excellent source for researchers who are interested in comparative IP remedies.  In my recent book Remedies in Intellectual Property Law (Edward Elgar Publishing 2026), I drew on a earlier paper coauthored by some of the same authors represented here (Masabumi Suzuki et al., Civil Follow Criminal or Criminal Follow Civil Procedure as Models to Deal with IP Infringement: Asian vis-à-vis Western Approaches, in Kreation Innovation Märkte – Creation Innovation Markets: Festschrift Reto M. Hilty 663 (Florent Thouvenin et al. eds., Springer 2024), previously noted on this blog here), but I surely would have benefited from this more detailed volume (and plan to cite it if I do a second edition!). 

 

Here is the abstract of the book:

IP scholars are not familiar with criminal law and nor are criminal law scholars familiar with IP law. This edited volume delves into this no man’s land. It identifies and addresses one aspect of IP laws and regimes in Asia that has been long overlooked but is shaping or even distorting the IP landscape in Asia, namely the actual use and/or overuse of criminal punishment for protecting IP rights. This is in stark contrast to leading Western jurisdictions, whose criminal punishment of IP infringement is provided for but rarely enforced. The overarching theme of this book is to critically review the rationale, legitimacy, and effectiveness of criminalizing IP infringement, assess its significance, expose its side effects, and propose reform suggestions. It has five parts. It starts with a criminological discussion of IP crimes, followed by five chapters that study the sources and models of criminal punishment of IP infringement, namely international treaties, the US, UK, Germany, and the EU. Part III then surveys six major civil law Asian jurisdictions—Japan, Taiwan, Korea, China, Thailand, and Vietnam. Part IV research four major common law Asian jurisdictions—India, Malaysia, Hong Kong, and Singapore. The sequence of Parts III and IV follows the order of seniority in introducing criminal punishment for IP infringement and is based on a common structure. The last part of the book provides policy analysis by first rethinking the criminal sanctions against the background of generative AI and the evolution of IP, followed by a comparative study and reform suggestions for IP leading jurisdictions, Asian jurisdictions, and the WTO community.

I have seen one review so far, by Niharika Salar on IPKat, here.

Update:  A review by Thanh Cu Vu is now available as well at 75 GRUR Int. 995 (2026).  

Abuse of Economic Dependence

As I discuss at pages 199-204 of my book Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), several countries, though not the United States, recognize an “abuse of economic dependence” doctrine.  In general terms, the doctrine forbids a firm with relative strength in comparison with another from abusing that strength.  Exactly what that means, of course, may vary from one country to another; but where applicable the doctrine can result in liability under circumstances in which the defendant lacks sufficient market power to be liable for abuse of dominant position.  At least in some countries, moreover, the doctrine is (or as originally conceived was) specifically intended to protect small and medium-sized enterprises, analogous in some ways to the Robinson-Patman Act in the U.S.  But can the doctrine be employed in response to (alleged) abuses of patent rights?

In this regard, I devote several pages to a recent decision of Belgium’s Cour de cassation, Victrix Socsan S.L. v. Tunstall Group Holdings Ltd., which I also have discussed on this blog at various times as it made its way from trial court to appellate court to Cour de cassation (see here, here, and here).  I was therefore pleased to see an English-language translation of portions of the decision by David Wright-Policepayeh in the current issue of GRUR Int. (specifically, 75 GRUR Int. 781-83 (2026)).  The translation highlights the portion of the decision holding that an abuse of economic dependence claim can be asserted even in the absence of a contractual relationship between the claimant and the defendant.  My own take, as expressed in the book, is that the lower court’s narrower interpretation (requiring a contractual relationship) is more sensible than the more expansive interpretation adopted by the Cour de cassation, which (I argue) “may threaten to provide every disappointed business suitor with a potential cause of action” (p.204).  In contrast, “where there is a contractual relationship, the abuse of economic dependence doctrine arguably could fill a gap by discouraging “holdup” in the sense originally developed by Oliver Williamson and others—as a form of opportunism on the part of the dominant party in a contractual relationship, the ex ante possibility of which could discourage some non-dominant undertakings from proceeding with otherwise beneficial transactions, or induce parties to incur inefficient ex ante costs to prevent such opportunism”—though the efficacy of the doctrine in this regard would hinge on the courts’ ability to apply the doctrine in a manner that would maximize social benefits over unintended social costs.

Whether the Belgian decision will lead to more cases, in Belgium or elsewhere, in which claimants assert the doctrine in response to alleged abuses of patent rights remains to be seen.  Meanwhile, for readers who want to learn more about the doctrine but don’t read French, the GRUR-Int. translation should be helpful—as is, I hope, my discussion in Wrongful Patent Assertion.  (And, just a reminder:  you can download the first chapter of the book for free using this link, through the end of this month; and you can use the promotion code AUFLY30 for a 30% discount). 

Helmers and Love on Injunctions and Venture Capital

Christian Helmers and Brian Love have posted a paper on ssrn titled Injunctions and Venture Capital: An Empirical Look at eBay's Effect on Startups, 16 NYU J. Intell. Prop. & Enter. L. __ (forthcoming 2027).  Here is a link to the paper, and here is the abstract:

In the two decades that have passed since the Supreme Court raised the bar for awarding injunctive relief in eBay v. MercExchange, numerous descriptive studies have documented a corresponding reduction in the frequency with which patent enforcers obtain injunctions against ongoing infringement. However, surprisingly few attempts have been made to assess whether eBay had a broader effect on incentives to innovate. As a result, it remains controversial whether eBay advances patent law's fundamental goal of spurring invention--and thus should be preserved--or instead stands in the way of progress--and thus should be reversed or legislatively abrogated. We inform this active policy debate by presenting the results of an empirical analysis of eBay's effect on venture-backed startups, a segment of the innovation economy that is generally regarded as both disproportionately affected by patent protection at the margin and disproportionately responsible for economic growth and job creation. Our results suggest that eBay had a modest and mixed effect on startup performance, not the broadly negative effect predicted by critics of the decision. This is true even among medical technology startups, a group that theory predicts is especially susceptible to eBay's hypothesized harms.

This is an important paper that deserves attention from policymakers.  It adds to the empirical literature evaluating the effect of eBay (in particular, papers by Mezzanotti & Simcoe, Mezzanotti, and Bereskin, Hsu & Wang, previously cited on this blog here) by focusing specifically on venture-backed startups founded between 2002 and 2005, information on which the authors obtained from PitchBook (see pp. 21-22).  Helmers and Love summarize their findings as follows:  

. . . our analysis indicates that the eBay decision had, at most, a modest, mixed effect on startups. What our results primarily suggest is that medtech and IT startups performed no differently than startups in all other areas. We find no evidence that the eBay decision was associated with an increase in shutdowns or down rounds, a reduction in firms’ likelihood of raising an additional round of VC funding, or changes in the quarterly frequency of VC investments. In addition, when we focus on the set of startups that was likely most impacted by eBay—those that filed patent applications prior to the decision—we likewise find no evidence that startups in either set of impacted industries were relatively less likely to progress to late-stage VC funding, more likely to resort to unpriced fundraising deals, or slower to close funding rounds; nor do we find that they grew at relatively slower rates as measured by headcount or the size of the VC deals they completed.

Moreover, when our specifications do produce statistically significant results, those results are mixed. In the medtech industry, our results suggest that startups grew relatively rapidly in the years following eBay as measured by the size of the deals they closed (in the overall sample) and the valuations reflected in those deals (in the overall and patenting samples) and, in addition, were generally more likely than startups in control industries to progress to a Series C funding round. At the same time, our results also suggest that patenting medtech startups were relatively less likely to obtain an initial round of VC funding post-eBay. Similarly, in the software and IT industries, our results indicate that startups grew relatively rapidly in terms of deal size and valuation overall, yet were also less likely to obtain an initial VC investment following eBay in both the overall and patenting samples (p.39).

One possible conclusion to draw, among others, is that "the association between patenting and startup performance may not be driven by the potential enforceability of . . .  patents, but rather . . . their value as signals" (p.41).  

Suzuki on SEP Disputes in Japan

Masabumi Suzuki has posted a paper on ssrn titled Standard Essential Patent Disputes in Japan:  From Apple v. Samsung to Pantech and the Future of SEP Dispute Resolution.  Here is a link to the paper, and here is the abstract:

After more than a decade of silence following the 2014 IP High Court Grand Panel decisions, Japanese courts issued three SEP judgments in 2025, all arising from suits by Pantech. This paper analyzes the Tokyo District Court's Pantech v. Google I — Japan's first case where an injunction was granted on an SEP — arguing its abuse-of-rights reasoning is unpersuasive: it offers no normative standard for good-faith FRAND negotiation, and barely evaluates the patentee's own conduct, unlike the more balanced Osaka judgment in Pantech v. Google II. It also covers Pantech v. ASUS JAPAN's FRAND royalty calculation. The paper then examines the Tokyo District Court's 2026 "Procedures" that push early settlement on global FRAND terms in litigation and initiate a judicial mediation system. It concludes that while this pragmatic turn suits SEPs' inherently global nature, more predictability about Japanese courts' position on FRAND negotiation is needed for Japan to become an attractive forum for SEP disputes.

This is an essential paper, if you want to understand the recent district court decisions in Tokyo and Osaka concerning SEPs—what they say, how they compare to the 2014 Apple v. Samsung decisions, what the possible weak spots are in the courts’ analyses, and what questions remain open—as well as how court-supervised settlement negotiations enter into the mix.

For previous discussion on this blog of the recent decisions discussed in Professor Suzuki's article, see here and here. 

Federal Circuit Leaves Untouched Its Unjust Enrichment Holding in Versata v. Ford

Last May, I published a post on Versata Software, LLC v. Ford Motor Co., a case in which a panel of the Federal Circuit held that, under the federal Defend Trade Secrets Act (DTSA) and the Michigan Uniform Trade Secrets Act, a plaintiff is entitled to recover “unjust enrichment” damages as a matter of statutory right.  The panel issued a modified opinion today, though only in respect of correcting its previous statement that Ford did not “claim” that certain costs should have been deducted from the breach of contract damages the plaintiff also sought (see p.15).  The holdings with regard to trade secret law therefore remain intact, in particular the panel’s conclusion that unjust enrichment is a remedy available at the plaintiff’s option (a position that, as noted in my previous post, some other courts have endorsed, while others have rejected it); and that an unjust enrichment award can exceed the royalty the parties would have negotiated, based on their licensing history.  (Compare this with the outcome of the recent Lucent v. Astronics case in the U.K., as discussed here.)  For now, I remain somewhat skeptical that disgorgement of profits or avoided costs should be available as a matter of course in trade secret litigation, but I am still thinking through the issues in anticipation of writing a paper on trade secret remedies sometime next year.  I'll just note, as I did in May, that U.S. courts are somewhat divided on the relevant issues, and that approaches to unjust enrichment outside the U.S. also reflect a range of perspectives.