Friday, April 28, 2017

From Around the Blogs: More Commentary on Unwired Planet v. Huawei

Earlier this month, Mr. Justice Birss issued his opinion in Unwired Planet v. Huawei, the first decision in the U.K. to address the question of how to calculate FRAND royalties.  I published some of my initial thoughts on the opinion here, and I've noted some other responses, including Jorge Contreras's thoughtful essay, here and here.  Since then, I'm come across some additional commentaries and discussions listed here.

1.  Mark Patterson published a post on Patently-O titled Teasing Through a Single FRAND Rate.  Professor Patterson expresses some doubt about Mr. Justice Birss's views that (1) there is a single set of terms that are FRAND; (2) that neither the offer nor the counteroffer made pursuant to the Huawei v. ZTE framework necessarily need to be FRAND; (3) that the "nondiscriminatory" aspect of FRAND is satisfied as long as the difference between the terms the patentee has offered the defendant and a third party do not violate competition law by "distorting competition"; and (4) that as a factual matter the terms Unwired Planet offered to Samsung and to Huawei didn't distort competition.  For what it's worth, as I noted in my earlier blog post I'm not quite as critical of Mr. Justice Birss's views on these matters, though I'm still thinking through my position on the single FRAND rate and Huawei v. ZTE matters.  Professor Patterson's analysis nonetheless is insightful, though I wish he had spelled out point (4) above in a little more mathematical detail.

2.   Rajiv Kr. Choudhry published a post on SpicyIP titled A Critique of the Decision in Unwired Planet v. Huawei.  Mr. Choudhry's principal criticism is Mr. Justice Birss's decision to award a roaylty on a globa, portfolio basis, which in Mr. Choudhry's view means that implementers will be paying for patents some of which might be inessential or invalid or expired or even (in some countries) nonexistent.  Personally, I'm not as concerned about this, since as a matter of convenience one might expect willing parties to negotiate a global portfolio license notwithstanding these risks. Also, as I read the opinion, Mr. Justice Birss did make accommodation for at least some of the matters, e.g., the likelihood that many patents declared essential aren't (see para. 186), that the portfolio would be more valuable in some countries than in others depending on how many relevant patent families there are in those countries, and that in non-major markets the rates would be lower.  Nonetheless, and interesting and thought-provoking analysis.

3.  IPKat recently has published a few additional posts touching on Unwired Planet or FRAND issues more generally, including one titled Unwired Planet v Huawei:  Is FRAND Now a Competition Law Free Zone?  Not So Fast (arguing, correctly in my view, that Unwired Planet doesn't stand for the proposition that SEP owners can never abuse their dominant position, in violation of competition law), and two posts discussing panels at the Fordham IP Conference, one titled Fordham 25 (Report 5):  IP Remedies (at which Mr. Justice Birss himself spoke, as did Jill Ge on the WatchData v. Hengbao case on which she blogged here), and Fordham 25 (Report 9):  FRAND, SEPs, and PAEs.  Also relevant to the topic of PAEs is this post titled European Patent Troll Boom Spurs Google, Adidas, Intel & Daimler Backed IP2Innovate to Demand Commission "Get Tough with US Patent Trolls", which expresses some doubt that the UPC has sufficient procedures in place to fend off PAE forum shopping. 

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