Chao on Real Hypothetical Negotiations

Bernard Chao has posted a paper on ssrn titled Real Hypothetical Negotiations.  Here is a link to the paper, and here is the abstract:

Patent law's prevailing method for awarding reasonable royalties relies on a "hypothetical negotiation" framework that asks what royalty a willing licensor and willing licensee would have agreed to. In practice, this approach has devolved into a battle of paid experts who manipulate the same evidence to reach dramatically different conclusions, often diverging by orders of magnitude. The current system's reliance on the unwieldy fifteen-factor Georgia-Pacific test, combined with inadequate judicial oversight and jury decision-making limitations, has transformed what should be a reliable proxy of market behavior into a stylized fiction used for strategic advocacy.

This article proposes and pilots the first empirically grounded alternative to expert driven reasonable royalty determinations. Drawing on patent law, experimental jurisprudence, negotiation theory and generative AI decisionmaking, it introduces "real hypothetical negotiations." Under this proposal, royalty rates are determined through simulated negotiation. Departing from the traditional remedial goal of strictly restoring the patentee to a pre-infringement state, this proposal prioritizes the constitutional mandate of promoting innovation. Accordingly, the briefing materials include both pre-infringement and post-infringement information to best calibrate damages to the invention’s actual economic value. 

To test this approach, the article reports results from two pilot studies based on Summit 6 LLC v. Samsung Electronics Co., where opposing damages experts reached dramatically different conclusions. Law students using the same case materials reached settlement in only two out seven of negotiations, while competing AI large language models (LLMs) using identical materials achieved settlement in all six cases. These mixed results illustrate both the challenges and promise of operationalizing this approach.

The article also describes several potential enhancements to the basic proposal: 1) blinding experts to the party that retained them, or alternatively, 2) court-appointed neutral experts to oversee the negotiation process, 3) conducting simulations multiple times to address outlier results and improve statistical reliability, and 4) using LLMs themselves as negotiators. The article concludes that real hypothetical negotiations offer valuable potential for both actual cases and controlled experiments. Future experiments could filter out value unrelated to innovation, revealing the patent’s true technical contribution and guiding damages awards toward outcomes that advance innovation.

This is a very interesting paper.  I agree with Professor Chao's assessment that "[t]he combination of vague guidance, inadequate judicial oversight, and jury limitations creates a system where reasonable royalty determinations are frequently divorced from economic reality," and I find his proposals for reform intriguing (though I suspect it might be a heavy lift to get them introduced into U.S. practice).  Still, the use of AI as a research tool to assist in negotiations could well prove beneficial, notwithstanding its potential limitations as noted in the article.  

OxFirst Webinars on Injunctions in Brazil and Korea

OxFirst has two free webinars coming up that may be of interest to readers of this blog.  The first, on May 13 at 15:00 UK Time, is titled Injunctions — Perspectives from the Judiciary of Brazil, and features Judge Victor Diz Torres of the Tribunal de Justiça do Estado do Rio de Janeiro.  According to the promotional materials, Judge Diz Torres "will examine the role of injunctions in Brazilian patent litigation, with a particular focus on when Brazilian courts grant injunctive relief, how such orders are enforced in practice, and how courts balance exclusivity, market access, and proportionality in innovation-driven disputes," as well as Brazil's emerging FRAND jurisprudence.  Registration information is here.  The second will be on Friday, May 22, at 10:00 U.K. Time, and is titled Injunctions — Perspectives from the Judiciary of the Republic of Korea.  It features Judge Dr Jiyoung Yi and Judge Kisu Kim.  According to the website, the webinar will "explore[ ] Korea’s newly established SEP Working Group, led by the judiciary, and its efforts to develop SEP guidelines. It also addresses global issues such as injunctions and anti-suit injunctions, highlighting international developments and the need for greater cross-border cooperation."  Registration is available here.  These both sound pretty interesting.

As Many as Three Incompatible FRAND Judgments Before Breakfast

Within the past week, there have been three judgments rendered in the ongoing FRAND dispute between ZTE and Samsung.  (For discussion on this blog of earlier proceedings in this dispute, see here.)  On Friday, Mr. Justice Meade issued his decision in Samsung Elecs. Co. v. ZTE Corp., [2026] EWHC 999 (Pat.) (Eng.).  In this action for a declaratory judgment, brought by net licensee Samsung, the court determines that a court-determined global FRAND license pertaining to ZTE’s and Samsung’s portfolios would (1) cover both 4G and 5G technology, (2) run for five years, and (3) require a net payment from Samsung in the amount of $392 million.  This number is derived from one comparable, the 2020 SEP license between ZTE and Apple.  Because ZTE negotiated this license from a position of comparative weakness, in part due to U.S. sanctions levied against the firm, the court effectively increases the inferred amount by 21%, which results in a net amount of $392 million.  Meanwhile, it has been widely reported that on the very same day the Chongqing court, in which a parallel global FRAND rate determination has been ongoing, issued a decision applying a top-down methodology and awarding ZTE the full amount it had sought for a six-year license, namely $731 million.  Then today the ip fray blog reports that the Munich Regional Court issued a written decision (apparently not yet publicly available), following up its oral decision last week that ZTE was entitled to an injunction, in which the court states that in its view a five-year global FRAND royalty based upon a top-down methodology would be in the amount of $640 million.  The report indicates that the court urged the parties to settle.

Settlement would seem the most likely course to me at this juncture; but settlements occur in the shadow of the law, and so the question arises . . . well, what exactly is the law here?  In other words, if the parties don’t settle, what happens?

Without the text of the Chongqing decision, the answer to this question is necessarily somewhat speculative—and even with it, I’m not sure I know the answer, but I will hazard a few possibilities nonetheless.  First, since the English decision is (at this stage) only for a declaratory judgment, I think Samsung would have to follow up with a request for injunctive relief (within the U.K.) and/or specific performance, if it wanted to force ZTE to accede to Mr. Justice Meade’s terms.  But then the question would arise whether, if ZTE didn’t accede (or perhaps even if it did?), other jurisdictions would feel themselves bound to recognize the judgment.  I suspect the Chinese courts would not, particularly in view of the recently-published Regulations of the People's Republic of China on Countering Foreign States' Unlawful Extraterritorial Jurisdiction Measures (which have been reported on elsewhere, and which may be the subject of a separate forthcoming blog post); and perhaps the German courts wouldn't either.  As for the Chongqing decision, if Samsung were to refuse to accede, I suspect that that court might enter an injunction against Samsung and/or permit the judgment to be levied against whatever assets Samsung has in China. Whether courts outside of China would enforce or recognize the judgment, however, remains to be seen; as readers are probably aware, the EU has a pending WTO complaint targeting China’s practice of establishing global FRAND royalties.  The German decision, if I understand correctly, would appear to force Samsung products off the market in Germany unless and until a license (covering at least whatever domestic SEP or SEPs are at issue in the Munich litigation) is concluded, but the court’s reported statements about the terms of a global FRAND license would not, in and of themselves, force Samsung to accede to those terms.  Whether other courts are persuaded by the Munich court's reasoning would be up to those courts.

These are all topics to which I will be giving a good deal of thought over the summer, as I work on an essay on IP and extraterritoriality.  I’m hoping as well that some of the well-regarded voices on private international law—that is, on general private international law not limited to the IP context, people such as Professors Bill Dodge and Curtis Bradley--will have something to say about this morass, and possibly how to resolve it.         

Landmark German Case on Patent Damages, Part 2

Continuing my discussion from Wednesday of the Judgment of the Munich Regional Court of Apr. 16, 2026, 7 O8367/25, the second portion of the decision centers on issues relating to awards of the infringer’s profits.  The court states that calculating the award involves three steps:  determining the infringer’s revenue, deducting the appropriately deductible costs, and determining the appropriate proportionality factor (Anteilsfaktor) (para. 61).  As for the first of these, the patentee can rely on the amount the infringer discloses pursuant to its disclosure obligation (Auskunftsverpflichtung) (para. 63).  In addition, the court says it is fundamentally irrelevant whether the claim is for direct or (as here) indirect infringement; in such a case, the revenues from all of the machines sold by the defendant and assumed to have been used for the purpose of practicing the patented technology are to be taken into account (para. 64).  (More on this issue below.)  Further, for sales made up to three months following expiration of the patent (sometimes referred to in English as “springboard” profits), the court believes that there should be a rebuttable presumption that these sales were the product of infringing offers made during the patent term (para. 65).  Extrapolating from the BGH’s decision in Polsterumarbeitungsmaschine (Judgment of Nov. 14, 2023, I ZR 30/21, discussed on this blog here), moreover, the patentee also is entitled to recover profits earned from additional business (Zusatzgeschäften, a term that in the context of patent law I would normally translate as “convoyed goods,” but I hesitate to use that term here because this is a case involving indirect rather than direct infringement), including goods that were sold after patent expiration but which are traceable to infringing conduct during the patent term (paras. 66-72).  These effects presumably dissipate over time, however, and so the court concludes that it is appropriate to presumes that the portion of such sales decreases in a linear fashion over a ten-year period—to wit, in the first year following patent expiration, the monetary recovery can be assessed at 100%, in the second year 90%, and so on (para. 72).  The court next turns its attention to deductible costs, which in general are the variable costs of production only and not the fixed costs, in accordance with the BGH’s Gemeinkostenanteil decision as I noted the other day (see paras. 73-88, going into some detail about which costs typically should be classified as variable and which fixed).  The court then turns its attention to causality and the proportionality factor, stating that this inquiry involves two steps:  determining the appropriate base (Bezugsgröße) and then the appropriate percentage of the profit to allocate to that base (para. 89).  Again it references the brake pad example noted on Wednesday, stating that

To answer the question of the extent to which the infringer’s profit is attributable to the infringement, the specific Bezugsgröße of the infringing product must first be determined. For example, if the infringed patent concerns a specific design of a brake pad for a motor vehicle, the proportion factor will vary depending on whether the vehicle, the brake system, or the brake pad is taken as the reference. The larger the Bezugsgröße chosen, the lower the proportion factor to be applied. Another factor in determining the Bezugsgröße is whether the patent protects a minor improvement or a completely novel invention. It is also relevant whether alternatives exist on the market and whether the product is emotionally charged (e.g., a brand-name product), which is generally unlikely to be the case (para. 91).

 Tying together the proportionality factor and the presumption of springboard profits, the court states that

. . . when determining the causality factor, it must be noted that subsequent transactions concluded after the expiration of the patent’s term are likely to be based less and less on the infringement of the intellectual property right over the years (the “blurry factor”—derived from the English term “blurry”: blurred).  In its Polsterumarbeitungsmaschine decision, the BGH does not postulate a right of the patent holder to perpetual participation in the profits generated by the patent infringer through subsequent transactions. Rather, the intention is to achieve a fair balance of interests. Therefore, the Chamber assumes that follow-on transactions are generally included for a period of 10 years after patent expiration, and that the proportion of the infringer’s profits attributable to the patent infringement decreases by 10% of the baseline value each year. This means that, in the first step, the causation factor must be determined as the base value, for example, 50%. This value is to be applied for the first year. In the second year, only 45% is to be applied, in the third year 40%, and so on (para. 92).

The decision concludes with the application of this methodology to the facts of the case.  The defendant sold 28 machines (25 during the patent term, 3 within one month of expiration), which generated revenue of €1,994.312, from which the court deducts €986,365.40 in variable costs; the court then determines that the appropriate causality factor is 50%, reasoning that, although “the machine is solely suited to carrying out the patent-infringing process,” “particularly with such expensive machines, other factors also play a role in the purchase decision, such as the defendant’s reputation or the quality of the services it offers in connection with the machines” (para. 118).   The resulting sum is, according to the court, €503,972.80 (I get €503,973.30; not sure what accounts for the missing 50 cents).  The revenue from the sales of 26 canisters of solvent sold during the patent term amounts to €531,611.32, from which €245,486.08 is deductible, leaving €286,125.24, to which the court applies a causality factor of 70%, resulting in €200,287.67.  The court then turns to solvents sold post-expiration but before the court hearing (36 months), and comes up with a figure of €397.26 in profit per machine per month (I’m not quite following the math here), to which the “blurry factor” analysis leads to a reduction of 10%, resulting in €360,394.27.  So overall, the award is €1,064.654.74, plus interest.  

So, to summarize, in a case in which the defendant was found to have engaged in indirect infringement by selling machines and solvent used by third parties to perform the patented process, the patentee is entitled to recover an allocable share of the profits earned on the sale of those machines and solvent, including a portion of the profits earned on sales made post-expiration.  (Although the name of the solvent is redacted, my sense is that it is a staple article of commerce.  I should also mention, perhaps, that the defendant is appealing the underlying liability determination.)  Overall, I think this is pretty remarkable.

In and of themselves, awards of damages (or, in countries where the law so permits, profits) for Zugeschäften are not so remarkable, assuming that there is sufficient proof of a causal connection between the infringement and those sales—although with respect to convoyed goods as such, the law in the U.S., unlike in the U.K., France, and Germany, imposes an additional limitation that the damages must “function together with the patented component in some manner so as to produce a desired end product or result.”   See Rite-Hite Co. v. Kelley Corp., 56 F.3d 1538 (Fed. Cir. 1995) (en banc) (stating further that “[a]ll the components together must be analogous to components of a single assembly or be parts of a complete machine, or they must constitute a functional unit,” and that “precedent has not extended liability to include items that have essentially no functional relationship to the patented invention and that may have been sold with an infringing device only as a matter of convenience or business advantage”).  Recovery of springboard damages or profits also are not so remarkable either, again assuming proof of a sufficient connection between the infringing conduct and sales made post-expiration.  German law, however, as evidenced by the Posterumarbeitungsmaschine decision, already had gone one step further, in permitting the recovery of profits on springboard convoyed sales.  And now this decision applies that logic to the induced infringement of a process patent. 

Even if we put aside for the moment the question of whether the court’s presumptions pertaining to post-expiration profits are sound, something about awarding the profits earned by an indirect infringer on its sales to the direct infringer of machines and solvent used for carrying out the patented process seems odd to me.  Suppose, for example, that a direct infringer benefits from the use of a patented process because the process reduces its costs of production by €150; but that to carry out the process, it must first buy equipment that costs it €50, so its net benefit from using the process is €100.  Suppose further that the seller of the equipment (who, let’s assume, will be liable under applicable law for some form of indirect infringement) incurs costs of €25 to produce that equipment, and thus earns a €25 profit on sales of the equipment to the third party.  Alternatively, suppose that the equipment costs the direct infringer €100 but still only costs €25 for the indirect infringer to manufacture.  The direct infringer’s net benefit is now €50 and the equipment manufacturer’s profit is €75.  In either case, the optimal outcome ex ante would have been for the direct infringer to agree to pay a royalty for the use of the use of the process, in some amount up to €150 minus the cost of the equipment used to carry out the process.  If the price of the equipment was €50, the direct infringer should have paid a royalty of up to €100, but on these facts the patentee who sues the indirect infringer can recover only €25 (assuming that profits are an available measure of monetary recovery).  Conversely, if the price of the equipment was €100, the direct infringer should have paid a royalty of up to €50, but the patentee who sues the indirect infringer can recover €75.  In neither case is the award of profits really tethered to the value of the use to the direct infringer, which would seem to me to be the more appropriate measure.  Of course, this is just a stylized example, and I suppose one could argue that a rule allowing for the recovery of either the direct or indirect infringer’s profit encourages the parties to negotiate ex ante rather than to infringe.  Even so, it seems like an odd result to me, though I need to give the matter some more thought.   (On the topic of damages for indirect infringement, see this article by the late Professor Dmitri Karshtedt, which I noted here.)

Another thing that is striking about the decision is the court’s summoning out of thin air its three-month, ten-year, and “blurry factor” presumptions.  Oddly enough, in a talk earlier this week to a group in the Netherlands, I mentioned at one point how the conventional view is that common-law judges have some measure of discretion to make law in response to changing circumstances, whereas civil-law judges are constrained to follow the code; but in fact, it’s not very difficult to come up with examples in which civil law judges have sometimes crafted judge-made standards dehors the text.  The example I actually had in mind when I made the comment was the development by French and German courts, over a hundred years ago, of moral rights in copyright law, though later I thought about the Huawei v. ZTE “dance” as articulated by the CJEU and further refined by the UPC and domestic courts; and the above decision would seem to be yet another example.  Meanwhile in the U.S., our (in my view, sometimes excessively) textualist-minded courts seem to be moving in precisely the opposite direction, as witness, e.g., cases like Romag Fasteners (discarding both precedent and common sense in adopting a literal reading of the Lanham Act's provision on disgorgement of profits, see discussion here), AMG Capital Management (in contrast, holding that the FTC cannot seek disgorgement of profits, see discussion here), or in a related vein Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) (holding that the Judiciary Act of 1789 precludes U.S. district courts from entering injunctions of a type that were unknown in 1789).  Freaky Friday, anyone?

Landmark German Case on Patent Damages, Part 1

Earlier this week, ip fray published a post discussing and excerpting a recent decision of the Seventh Chamber of the Munich I Regional Court, specifically the Judgment of Apr. 16, 2026, 7 O 8367/25.  The patent at issue is the German portion of EP 1 501 669 B1, for a “smoothing method for layered deposition modeling,” used in layered manufacturing techniques.  (I was interested to see that the inventors are from Eden Prairie, Minnesota, not much more than a stone’s throw from my house.)  The patent has expired, but the defendants were found to have engaged in indirect infringement during the patent term by selling machines and solvents used to carry out the process.  The present decision therefore focuses on damages, ultimately awarding €1,064,654.70 for the sale of 28 devices and 266 16-liter units of solvent (paras. 39-40), both used for carrying out the process.  But because “there are therefore few decisions regarding the amount of damages,” the court perceives “a need for judicial clarification on exactly how damages should be calculated. This is particularly necessary because, as a result of the European Court of Justice’s ‘BSH-Hausgeräte’ decision (GRUR 2025, 568), national courts are likely to have to deal with an increasing number of centralized claims for damages” (para. 42; I’ll be using machine translations throughout, subject to some adjustments of my own from the original German).  So beginning with paragraph 43 of the decision, the court sets out what it views as the relevant principles for calculating damages.  (These are summarized in the decision’s headnotes at the beginning of the decision, and these headnotes are the focus of the ip fray article.)  Overall, this appears to be quite an important decision, so I am dividing up my discussion and analysis into at least a couple of parts, with today’s post centering on the court's general statements regarding lost profits, royalties, and infringer's profits.

First, the court compares the three methods of determining damages (the aforementioned lost profits, royalties, and infringer’s profits), stating that the first of these is the hardest to prove but also tends to be result in a higher amount.  Reasonable royalties are comparatively easy to prove, and infringer’s profits something of a compromise between the two (para. 49), though the latter are not dependent on the amount of the patentee’s loss (para. 47).  This all seems largely correct to me, from an economic standpoint, although I would also point out that the infringer’s profit could be higher than the patentee’s own lost profit, if for example the infringer reaches markets the patentee doesn’t or is a more efficient producer of the patented article.  Overall, though, this discussion is in my view a welcome change from something I recall haven previously seen (see my discussion here) suggesting that in principle all three methods should converge on the same amount.

Second, the court notes that patentees’ reluctance to disclose their own financial information means that there are few decisions in which lost profits are awarded.  The court appears (to me) to want to change this, stating that all the patentee really needs to do is to prove its unit price and to offer the expert opinion of an auditor of what costs should be deducted (para. 51).  Moreover, the need to prove causation need not be insurmountable; all the patentee must do is prove a decline in sales following the infringement, and a rebuttable presumption then arises that these are caused by the infringement (para. 52).  The court suggests that the infringer can try to rebut the presumption through, perhaps, market reports--though the ip fray article suggests that in practice the presumption may be hard to overcome, because of the limited discovery available to defendants.

Third, the court says that patent owners can combine a lost profits award with a reasonable royalty or an award of profits, in cases in which the decrease in sales is at least partly attributable to other factors, or the infringer reaches additional markets that the patent owner didn’t serve.  But reasonable royalties can’t be combined with infringer’s profits (para. 53), all of which seems economically correct to me.

Fourth, in line with the BGH’s 2001 Gemeinkostenanteil decision, as a general rule when calculating an award of infringer’s profits, only the infringer’s direct costs should be deducted from its revenue (para. 54).  (The non-deductibility of allocable overhead, of course, leads to higher awards.)  In addition, however, the court stresses the importance of determining the extent to which the infringer’s profit is attributable to the infringement.  In this regard, it is essential to determine the appropriate base (Bezugsgröße).  Here, the court uses as an example an infringing brake pad.  In comparison with the entire vehicle the brake pad portion (Anteil) is vanishingly small; in comparison with the brake assembly, it is small; and in comparison with the brake pad itself it is, of course, 100% (para. 55).  In this regard, especially for a very small component of an entire product, the portion may be determined not be means of a percent but rather as a multiple of the standard license rate (para. 56).  In contrast, for machines which make use of a method or device claim, typically the percentage can be presumed to be 50% (para. 57).      

Fifth, a reasonable royalty can be viewed as a “safe harbor,” and the requirements for calculating it are minimal (niedrig).  The revenue from infringing products should be evident from the disclosure the defendant is required to make (in German, the Auskunft), after which it is necessary to determine the base (entire machine or component) and the typical license rate.  According to the court, the standard rate varies from 1% in the automobile industry to 10% for high-quality mechanical engineering (para. 58).  (The ip fray article suggest that these rates could really add up, since in Germany a separate action is required for each patent that is asserted by the plaintiff.  Or would the court take this procedural matter into account in calculating royalties, to avoid overcompensation?)

Sixth, the court states that because of differences between a negotiated license and license rate that is determined followed a finding of infringement, the latter can be higher, citing the Munich court’s 2010 Gülleausbringung decision (which I blogged about here).  This makes economic sense, since the infringer avoids certain risks that the voluntary licensee undertakes, and also because prior to final judgment there often will be some uncertainty as to infringement (though in Germany, there still may be substantial uncertainty as to validity, since the invalidation proceedings are separate from infringement proceedings).  As to the amount of the enhancement, the court says it can be up to three times higher (para. 59).  This actually seems pretty high to me, in view of the latter point about validity still potentially being in dispute.  

There is a lot more to the decision—some of it potentially quite path-breaking—including discussion of apportionment of profits, damages for convoyed goods, and springboard damages.  I will continue with my next installment on this decision in a few days.

Wrongful Patent Assertion: A Comparative Law and Economics Analysis

I am pleased to announce that the online edition of my new book, Wrongful Patent Assertion:  A Comparative Law and Economics Analysis (Oxford Univ. Press 2026), is now out.  The hardcover edition is scheduled to be published on May 21.  This is the culmination of a project I first conceived over ten years ago, and it is gratifying after so much time and effort to finally see it through to completion.  I am grateful to the many colleagues and students who provided feedback along the way.

 

Kapischke on Interim Licenses and AILIs

Justus Kapischke has published an article titled Interim Licences and Anti-Interim-Licence Injunctions:  Semi-strict non-interference or rules for the race?, 5/2026 GRUR 275.  Here is the abstract:

This article analyses and provides background information on two recent decisions of the LG Munich I and the LD Mannheim.  In both decisions, the courts react negatively to the English practice of awarding interim licence declarations in FRAND disputes, enjoining implementers from applying for such relief.  The LD Mannheim further offers its opinion on the limits of final FRAND determinations in England.

The decisions at issue are, of course, Judgment of Nov. 26, 2025, LG Munich I, 21 O 12112/25, and InterDigital VC Holdings, Inc. v. Amazon.com, Inc., UPC_CFI_936/2025 (LD Mannheim Dec. 22, 2025), both of which entered anti-interim license injunctions (AILIs) directed against Amazon.  (Both decisions are also excerpted in this same issue of GRUR, at pp. 313-30.  The appeal from the Mannheim LD decision will be heard on May 28.)  The author ably illustrates the incompatibility of the English approach to FRAND disputes (under which the court’s task, ultimately, is to set a rate) and the German/UPC approaches (which to date have focused on conduct), writing that “[a] foreign court making injunctions unavailable by ordering the SEP holder to grant a licence interferes with the incentive structure of injunction focused approaches,” whereas “conduct-based injunctions may force settlement before any court had the chance to establish FRAND terms either by determining them or by confirming the FRANDness of the SEP-holder’s offer, frustrating a rate-setting approach” (p.177).  He questions some of the analysis of the above two decisions, noting that they both seem premised on the coercive effect of an English declaration concerning interim licenses (effectively equating them to antisuit injunctions), even though “it is clear that interim licences do not force an SEP-holder to accept rate-setting proceedings in the implementer’s preferred forum” (p.179).  True, the SEP holder’s refusal to comply with the declaration could result in its being deemed an unwilling licensor, but the author states that the SEP holder’s seeking an AILI is “unlikely to change anything about that” (p.180).  (In addition, it would seem to me, the odds that the SEP holder would obtain an injunction in the U.K. are pretty negligible anyway, aren’t they?)  In addition, he notes both courts’ emphasis on the territorial nature of patents, which however in a strictly jurisdictional sense “appears not to be the current law in Germany or the EU as exemplified by the ECJ’s judgment in BSH” (p.182).  I’m glad to see someone making this connection, which seems quite important to me.  The author argues, however, that strict territoriality is not the Mannheim LD’s position, but rather only what he refers to as “semi-strict” territoriality in the sense that “courts can, on behalf of SEP holders, impose their view of global FRAND licences on implementers by way of injunctions,” but implementers “may not use similarly coercive measures as means of imposing global FRAND determinations on SEP holders, since this would interfere with foreign infringement proceedings” (p.182).  I’m not entirely sure of the author’s view here, but I’m not convinced of the merits of this distinction.  (I plan to explore the question more deeply in a forthcoming essay I will contributing to the Research Handbook on Extraterritoriality and Intellectual Property, which I mentioned here the other day.  Consistent with the author’s observation that “both sides can at least plausibly accuse each other of having taken the first ASI-like measure” (id.), it has long seemed to me that when courts start issuing ASIs, AASIs, AILIs, declarations concerning interim licenses, and so on, it is awfully difficult to say which jurisdiction is the one violating the comity norm.)  The author closes by suggesting that it would be helpful “to obtain authoritative constructions of the relevant (F)RAND undertakings from the French of Swiss courts,” and also if SEP holders “offer[ ] to refrain from seeking injunctive relief if the implementer agrees to be bound by a rate-setting procedure in Germany or at the UPC” (id.).  Might the German courts and/or UPC ever head in this direction?