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?      

Lavie and Shapira on Rivalrous Remedies

Shay Lavie and Roy Shapira have posted an article on ssrn titled Rivalrous Remedies, Vand. L. Rev. (forthcoming).  Here is a link to the paper, and here is the abstract:

Legal scholarship typically conceptualizes enforcement as operating directly on wrongdoers: either by enjoining them ex ante or by imposing monetary sanctions on them ex post. Yet across a wide range of legal fields, courts and lawmakers have long employed a different and largely untheorized instrument. Instead of sanctioning the wrongdoer directly, these doctrines deter misconduct by conferring a legal advantage on the wrongdoer’s rival: a business competitor, a litigation counterparty, or another strategically positioned actor. For example, when a patent holder forces customers to sign aggressive licensing agreements, courts may allow the patent holder’s competitors to freely infringe the patent. And in family law, when one parent alienates a child from the other, courts often respond not by fining the alienator parent but by granting the alienated parent additional visitation rights.

 

This Article is the first to systematically analyze this institutional design, which we term “rivalrous remedies.” In the process, the Article makes three contributions. Conceptually, it identifies the conditions under which regulating behavior indirectly—by empowering rivals—can outperform classic remedies. Rivalrous remedies can leverage the superior information and incentives of rivals. At the same time, these remedies operate effectively only in certain market structures and pose risks of overuse and spillover harms to third parties.

 

Descriptively, the Article demonstrates the prevalence of rivalrous remedies by analyzing nine doctrines across diverse legal fields: from false advertising to defamation law to civil procedure. While each doctrine has been criticized by scholars in their respective fields, viewing them through a common lens reveals a shared institutional logic: they emerged to address chronic underenforcement problems. In particular, these doctrines respond to underenforcement by shifting who enforces (not necessarily the direct victim) and/or how enforcement occurs (through largely self-executed mechanisms requiring minimal judicial involvement).

 

Normatively, the Article offers guidance for courts interpreting existing rivalrous remedies, identifying when they should be expanded, constrained, or combined with traditional remedies. It also proposes the adoption of a new rivalrous remedy in trade secret law to address enforcement failures surrounding consumers’ “right to repair.”

Although I don’t necessarily with everything in the paper, its presents an intriguing analysis of a variety of doctrines—including one that I have written on from time to time (including in my forthcoming book, Wrongful Patent Assertion), namely IP misuse.  On misuse in particular, the authors argue that traditional remedies against, say, overextensive licensing practices are often ineffective, because the direct victim may have difficulty proving (for example) an antitrust violation (or, in the copyright sphere) fair use.  Patent and copyright misuse law can counter this potential underenforcement problem by conferring an advantage (unenforceability of the subject IP) on the patent or copyright owner’s rivals; in principle, this “rivalrous remedy” should serve as a deterrent against the overextensive licensing practice in the first place.  Of course, how effective that deterrent is depends on the rivals being aware of the overreaching, and being confident that they would prevail on the misuse defense if sued for infringement.  (One possible countervailing consideration, it occurs to me, is that under the traditional understanding of misuse the penalty of unenforceability lasts only until the misuse is purged, so a rival might still be hesitant to make any irreversible investments in reliance on its ability to lawfully access the subject IP.)  Moreover, as the authors note, “the patent misuse doctrine is imperfect,” because “[c]ourts sometimes have a hard time distinguishing between practices that do not hurt competition and those that do” (p.22).  All that said, this is an interesting way of thinking about misuse and doctrines in other bodies of law such as false advertising (where the idea of investing competitors with the right to sue has sometimes been thought of as, in effect, deputizing them to vicariously avenge the direct injuries suffered by consumers) and antitrust.  I think one could probably extend the analysis to the tort of interference with prospective business relations as well, insofar as that body of law confers upon a disappointed rival some recourse against a person who has used improper means to discourage third parties from doing business with the rival—though my sense is that, in its current form, this tort is rarely successful.  

China and ASIs

I don’t think I have previously this mentioned on this blog, but Professor Tim Holbrook and I have signed a contract with Oxford University Press to coedit an edited volume titled Research Handbook on Extraterritoriality and Intellectual Property Law.  I will have more to say about this project over the course of the next year or so, but for now will just note that we have assembled a list of about forty contributors, including ourselves, to address the many issues that may arise in evaluating the geographic scope of IP rights.

One group of such issues, of course, relates to standard-essential patents; among the relevant issues are whether courts can or should award global royalties, with or without consent of the parties, and whether they can or should award interim relief such as antisuit injunctions, anti-antisuit injunctions, or declarations concerning interim licenses.  In connection with antisuit injunctions, as readers are by now aware, a WTO arbitration panel last year ruled in favor of the EU's appeal from the original panel decision, in finding that China’s antisuit injunction policy violated TRIPS articles 28.1 and 28.2, read in light of article 1.1 second sentence (see my post here).  It is therefore notable that, as has been reported elsewhere, on April 1 the EU published an announcement that China had announced its withdrawal of the antisuit injunction policy at the WTO Dispute Settlement Body meeting in September.  The minutes of that meeting are available here, and the EU-China dispute is Item 2 (pages 6-9).  China expresses its agreement with the original panel opinion and its disagreement with the arbitration panel, before stating in paragraph 2.4 that the Supreme People’s Court had issued a notice on September 25 “stating that the so-called ‘ASI policy’, to the extent it ever existed, had been withdrawn and had no continuing effect upon how Chinese courts evaluated requests for anti-suit injunctions in the context of SEP litigation.”  The aforementioned EU announcement states that “[a]fter some initial technical issues were resolved, this notice is currently accessible online from outside China too” (if any readers can point me to it, I would appreciate it), but that “[g]iven the unwritten nature of China’s anti-suit injunction policy, the European Commission will continue to closely monitor the situation to ensure China’s full compliance . . .  and take further action, if necessary.”

In light of these developments, it was interesting to read an article by Yao Jianjun (former vice president of the Xi’an Intermediate People’s Court) in an issue of China Patents & Trademarks, No. 4, 2025, that recently came my way.  The article, appearing in English translation at pages 12-22, is titled Application of Anti-Suit Injunctions in SEP Disputes.  It provides an overview of Huawei v. Conversant, which was the first of five cases from 2020 in which a Chinese court (here, the SPC) granted an ASI (here, against the enforcement of an injunction granted against Huawei in Düsseldorf).  The author discusses where ASIs fit within Chinese civil procedure law, as well as the five conditions specified by the SPC for granting an ASI (“the impact of the enforcement of foreign judgments on Chinese litigation,” “the necessity of ASIs as a preservation measure,” the “balance of interests of both parties,” “the impact of ASI on the public interest,” and “international comity”) and how they played out on the facts of Huawei v. Conversant.  The author agrees with the court’s decision, though he also notes some of the limitations of ASIs, and cautions against the sequence of lawsuits being a dispositive factor (insofar as this would encourage races to the courthouse).  Apparently the article was written before the EU-China matter was completed, since the author references its existence but not its conclusion.

One thing I found interesting in the article, and which I plan to discuss in the essay I will be contributing to the edited volume I mentioned at the beginning of this post, is the author’s emphasis on the perceived need to counteract the impact of proceedings initiated in another country which, he writes, may “impair[ ] the legitimate rights and interests of the applicant,” thus requiring “a remedy . . . to the party that has suffered damage to the injunction” (pp. 14-15).   In this regard, he writes, if Conversant had applied to enforce an injunction in Germany, the result would have been that Huawei either would have exited the German market or would have settled with Conversant (at a rate, he says, that would have been 18.3 times higher than the rate determined by the Chinese first instance court); and that "such potential damage . . . may substantially harm Huawei's legitimate rights and interests" (p.18).  This framing of the issues bears some resemblance the "effects" test (as used, for example, in U.S. antitrust litigation), under which courts sometimes justify the exercise of prescriptive jurisdiction directed against extraterritorial conduct when such conduct has effects within the prescribing jurisdiction.  From an economic perspective, the application of the effects test is akin to the concept of internalizing an externality—though in this context, the twist is that the externality is caused by the foreign jurisdiction’s toleration or authorization of conduct which the domestic court would like to forbid.  Relevant to this point, a generation ago Professor Joel Trachtman wrote an intriguing paper titled Externalities and Extraterritoriality: The Law and Economics of Prescriptive Jurisdiction, in Economic Dimensions in International Law 642 (Jagdeep S. Bhandari et al. eds., 1997), in which he posits that, if we think of nations participating in a market for prescriptive jurisdiction, and of (in some cases) even having the ability to engage in some measure of Coasean bargaining, there is a range of possible options for allocating the right to prescribe.  Some allocations may be more efficient than others, under the circumstances at hand.  An unavoidable aspect of this framework, however, is determining exactly what counts or should count as a harmful externality—that is, one that causes cognizable harm, a topic that my colleague Claire Hill also has written about.  In the context of ASIs, of course, the country against which the ASI is directed (in effect though not in form, since the form of the injunction is inter partes) presumably believes that it is doing nothing wrong by entertaining a case that is lawfully before it, or by issuing an injunction against the infringement of domestic patent rights in accordance with domestic law; and indeed, if the WTO arbitration panel approach prevails, such conduct is in general privileged and does not cause cognizable harm under international law.  But one could also imagine an alternative rule under which the right to issue an ASI to prevent the perceived negative domestic effect (suffered by a domestic firm or by a domestic court) of a foreign injunction prevails over the foreign court's right to entertain a case or enter an injunction.  Determining which rule makes more sense from a policy standpoint might perhaps depend on how absolute the prohibition on ASIs is under the first approach, and how substantial the domestic effect must be under the second.  (Thinking of these issues from a slightly different angle, as I mention in a discussion of Professor Christopher Drahozal’s game theoretic approach to ASIs in my forthcoming book Wrongful Patent Assertion, in a given case reasonable minds may differ whether it is the country issuing the ASI, or the country against which the ASI is issued, that is deviating from the "comity" norm under which nations are largely left to determine their own domestic policies.)  At this stage, I'm not sure exactly where my analysis is going to lead, but this seems like an interesting problem for analysis through a law-and-econ lens; and if readers have any thoughts or suggestions, I’d be delighted to hear them.     

Blogging Break This Week

 Apologies, but once again I am swamped with other work.  I hope to resume blogging next week. 

FRAND in Japan

As I note in my forthcoming book Wrongful Patent Assertion, in 2014 a Grand Panel of the IP High Court held, in Samsung Elecs. Co., Ltd. v. Apple Japan Godo Kaisha, Judgment of May 16, 2014, 2013 (Ne) 10043, that the owner of a FRAND-committed SEP may abuse its rights by seeking injunctive relief against a willing licensee; and “[i]n a subsequent decision, Imation Corp. Japan v. One-Blue LLC, Tokyo Dist. Ct., Feb. 18, 2015, Case No. 2013 (Wa) 21383, the court held that the defendant (the manager/operator of a patent pool that included some SEPs) had engaged in unfair competition by sending a warning letter to three retailers threatening injunctive relief, because under the Samsung v. Apple decision, the act of seeking an injunction for the infringement of a FRAND-committed SEP against a willing licensee is an abuse of right.  The [latter] decision therefore appears to read Samsung v. Apple as holding that it is an abuse of right per se to seek injunctive relief against a willing licensee for the infringement of a FRAND-committed SEP.  Cf. Yuzuki Nagakoshi & Katsuya Tama, Japan Without FRANDS?  Recent Developments on Injunctions and FRAND-Encumbered Patents in Japan, 44 AIPLA Q.J. 243 (2016) (critiquing Samsung v. Apple for arguably creating such a per se rule and for ignoring, as part of the abuse of rights calculus, the rightsholder’s subjective intent; and proposing that Japanese courts hearing FRAND cases instead consider whether the rightsholder has satisfied its statutory duty to negotiate in good faith).”  Other than these two cases, however, to my knowledge there hasn’t been much any Japanese case law involving FRAND-committed SEPs, until last year when three new district court decisions—all involving the same plaintiff, Pantech Corp.—came out.  Two of these have recently made available in translation on the IP High Court’s website; the third, not yet.  They all appear to agree, however, that it is an abuse of right for the owner of a FRAND-committed SEP to seek injunctive relief against a willing licensee.

The first of the three, Pantech Corp. v. ASUS Japan Co., 2022 (Wa) 7976 (Tokyo Dist. Ct., Apr. 10, 2025), involves Japanese Patent No. 4982653, titled “Method of transmitting and an apparatus for transmitting ACK/NACK information and a method of transmitting and receiving and an apparatus for receiving ACK/NACK signals.”  The court concludes that ASUS’ products infringe and that the claims in suit are valid.  On the issue of remedy, however, the court states that “a FRAND-encumbered standard essential patent holder's act to demand an injunction against a standard essential patent implementer based on the standard essential patent is impermissible as an abuse of right, unless there is a special circumstance where the standard essential patent implementer has no willingness to obtain a license under FRAND terms” (p.25).  After a review of the parties’ negotiating history (pp. 25-30), the court concludes that the defendant was a willing licensee, stating:

the reason for which the Plaintiff and the Defendant failed to reach an agreement on a FRAND rate in spite of prior consultations relating to the abovementioned findings and settlement talks in this lawsuit is that the FRAND rates presented by both parties were far too divergent, as explained in detail later (No. 7). According to both parties' assertions mentioned above and the entire import of oral arguments, the cause for this divergence is considered to be as follows: in major countries in the world, the Unwired Planet v. Huawei judgment, as presented by the Plaintiff, and other court precedents on FRAND rate calculation methods have developed internationally in response to changes of the times; on the other hand, in Japan, there have been no court precedents based on the abovementioned international development for about 10 years following the Apple v. Samsung Grand Panel judgment, and also, even taking into account various circumstances that appeared in this case, a FRAND rate calculation method has not necessarily been established in Japanese business practice (p.31).

Citing article 102(3) of the Japanese Patent Act (on reasonable royalties) and the IP High Court’s 2019 judgment in NeoChemir (see my blog post here), the court then sets out principles for calculating the FRAND rate:

In light of the global nature and the enormous number of standard essential patents implemented in the manufacturing of products conforming to a standard, when determining a FRAND rate, it is necessary [i] to take into consideration a royalty rate set in the actual license agreement for the standard essential patent, or if it is indefinite, a global average royalty rate in the industry; [ii] to presume the individual values of all standard essential patents to be the same because it is practically difficult to find the individual values of the enormous number of patents, and to calculate the value of a single standard essential patent by dividing the value of all standard essential patents by the total number of standard essential patents, while ensuring that the total amount of royalty obtained through aggregation of royalty rates of the standard essential patents remains  within a reasonable scope; and [iii] to also take into consideration, in such a case, possible contributions to sales and profits if all standard essential patents are used in the product. Furthermore, [iv] as a FRAND rate should fundamentally be agreed upon globally as soon as possible through good-faith negotiations between a FRAND-encumbered standard essential patent holder and a standard essential patent implementer, under the literally fair, reasonable, and non-discriminatory terms, a reasonable FRAND rate should be determined by comprehensively taking into account the negotiation process between the parties and the standard essential patent implementer's willingness to obtain a license under FRAND terms, and other circumstances appearing in the lawsuit, from the viewpoint of facilitating the agreement (p.35).

Ultimately, the court calculates a royalty for the one patent in suit by multiplying the sales revenue from the defendant’s products (redacted) by the aggregate royalty burden for LTE-standard-related patents (which the court figures at 9% for LTE products, based on an analysis of findings made in Unwired Planet, TCL v. Ericsson, and Huawei v. Samsung, and 8% for 5G products (p.39)), and then dividing by the number of LTE-standard-related patents (which the court estimates to be 1,300, taken into account likely validity, etc., see pp. 40-41)).  The rate itself is redacted.

The second and third decisions are both actions by Pantech against Google Japan G.K.  I understand that both cases involve the same patent, Japan Patent No. 6401224 (“Method for mapping a physical hybrid automatic repeat request indicator channel”), but different accused products (the Google Pixel 7, since discontinued, and the Pixel 7a, respectively).  In the first of the two, 2023 (Wa) 70501 (Tokyo District Court June 23, 2025), a translation of which is available here, the Tokyo District Court agreed that a FRAND-committed SEP owner’s demand for an injunction “is impermissible as an abuse of right, unless there is a special circumstance where the standard essential patent implementer has no willingness to obtain a license under FRAND terms" (p.39).  The court nevertheless held that Pantech was entitled to an injunction because Google’s conduct during the course of a court-supervised settlement negotiation (occurring in July 2024) demonstrated that Google was an unwilling licensee.  In dicta, however, the court found no fault with Google’s pre-settlement negotiations behavior and thus would not have found Google unwilling on the basis of that conduct alone (see pp. 47-50).  In the second one, however—according to the commentary cited below, since a translation has not been uploaded yet—the Osaka District Court on July 10, 2025 concluded that Pantech was not entitled to an injunction, because Google had shown itself to be a willing licensee through the end date of negotiations the court took into account (November 30, 2023).  The commentaries below do not say anything about the Osaka court actually determining the FRAND royalty, and some more recent commentary indicates that by early January (with other cases involving newer models of Google phones pending) Pantech and Google had settled on global terms, following a recommendation by the Tokyo district court.

For commentary that was helpful in drafting this post, see Masachi Chucho, Pantech v. ASUS: A Recent FRAND Judgment from Japan (available here); Takeshi Komatani, Japan’s First SEP Injunction:  Pantech v. Google and the High Bar for Establishing Unwillingness (available on AIPPI’s website here); and Kenji Tosaki, Takahiro Hatori & Yujiro Fukuhara, The Japanese court first judgment to grant an injunction based on a FRAND-committed SEP (available on Chambers and Partners’ website here; original, longer version available here).   

Meanwhile, as discussed elsewhere (see, e.g., here, here, here, and here), in early 2026 the Tokyo District Court also issued two new documents, Guidelines for Patent Infringement Litigation Based on Standard Essential Patents and SEP Mediation Procedures.  I may have more to say about these in due time.