Friday, January 10, 2014

Friday FRAND Roundup

1.  The Essential Patents Blog earlier this week posted and provided detailed commentary (which I commend to readers' attention) on an amicus brief filed on December 20, 2013 by the American Antitrust Institute in Ericsson v. D-Link Sys. Inc., an appeal pending before the Federal Circuit.  As stated by the AIA, "The brief argues that the 15 Georgia-Pacific factors used in determining a reasonable royalty for purposes of ordinary patent damages are not an appropriate basis for instructing a jury how to determine damages for infringement of a standard-essential patent encumbered by a RAND commitment, at least not without significant modification. Therefore, the district court’s wholesale adoption of the Georgia-Pacific factors was error . . . ."   In particular, the AIA argues for modifications along the lines made by Judge Robart in Microsoft v. Motorola and by Judge Holderman in Innovatio IP Ventures.  Previously, Essential Patents also had posted and commented on an amicus brief filed in the case by the IEEE, authored by Dorsey & Whitney's Michael Lindsay (who, incidentally, will be teaching antitrust law at my institution this coming semester).

2.  Relatedly, Essential Patents reported yesterday that in a pending SEP patent infringement case in the District of Delaware, OneBlue LLC v. Imation, Judge Leonard Stark has decided (like Judge Holderman in Innovatio) to do a "reverse bifurcation," that is, to determine essentiality and the FRAND rate before deciding liability.   From the oral order:  "For purposes of the FRAND phase, the patents-in-suit will be presumed to be valid and infringed, subject to Defendant’s right to litigate these issues following the FRAND phase.  However, as part of the FRAND phase, the Court will determine whether the patents-in-suit are standards essential; this issue will not be deferred to the post-FRAND phase."

3.  Professor Nicolas Petit (University of Liège) recently published a paper titled Injunctions for FRAND-Pledged SEPs:  The Quest for an Appropriate Test of Abuse Under Article 102 TFEU, 9 European Competition Journal 677 (2013), available here.  Here is the abstract:
This paper discusses the legal test under which owners of Standard Essential Patents (SEPs) who have pledged to grant licenses to those SEPs on Fair Reasonable and Non-Discriminatory (FRAND) terms can be held guilty of an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU) by seeking, or threatening to seek, injunctions against unlicensed implementers of their technology.  

I've only just started reading it, but it looks interesting and I may have more to say about in a future post.  Along with Alfonso Lamadrid de Pablo, Professor Petit also hosts the Chillin'Competition Blog, which I only recently became aware of and have now added to this blog's homepage under "Other Blogs of Interest."  
4. Finally, Professor Simonetta Vesozzo (University of Trent) has a short paper on ssrn, which just came to my attention, titled The Use of Standard Essential Patents:  Competition Issues.  Here is a link to the paper, and here is the abstract:
The threat, seeking and enforcement of injunctions, i.e. court decisions whereby a party is ordered to desist from an infringement of an intellectual property right, have recently come under the spotlights of courts and regulatory authorities on both sides of the Atlantic. The main purpose of this brief paper is to highlight some of the crucial issues competition authorities and courts are likely to consider when applying Article 102 TFEU to the threat, seeking and enforcement of injunctive reliefs by owners of standard essential patents.


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