Florian Mueller alerted me last night to the Japanese IP High Court's ruling in the Grand Panel Appeal in the Samsung v. Apple FRAND dispute. (In February, I reported on the lower court's ruling and on the IP High Court's decision to hear the matter as a Grand Appeal here. My August 26, 2013 post explains the abuse of right rationale the lower court applied in the initial decision.) According to reports in Japan Today and by Hal Wegner, the High Court affirmed the lower court's decision that Samsung engaged in an abuse of right in its negotiations with Apple over the licensing of a FRAND-encumbered standard-essential patent and therefore was not entitled to a preliminary injunction. The High Court reversed the lower court's decision that Samsung's abuse of right also deprived it of the ability to recover damages, and awarded ¥ 9,950,000 (about US $ 98,000). My initial reaction is that the damages figure seems low (though I don't know the specific evidence before the court on this issue) but that otherwise the court got it right as a matter of policy: as I stated in my August post, my view is that as a general rule the owner of a FRAND-encumbered SEP should not be able to obtain an injunction, but that the initial decision went too far in denying Samsung damages relief as well. The correct remedy for infringement in such cases is the FRAND royalty the parties would have agreed to ex ante.
I may have more to say about the case as additional information trickles in. The summary ruling is available (in Japanese) on the High Court's webpage, which also promises a summary and full text of the ruling in English soon.
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