Last week while I was in Taiwan the Federal Circuit issued a precedential decision in TCL Communication Technology Holdings, Ltd. v. Telefonaktiebolaget LM Ericsson (opinion by Judge Chen, joined by Judges Newman and Hughes. The court reverses Judge Selna's FRAND determination from December 2017 (for previous discussion of which, see Judge Chen's thorough discussion at pp. 10-16, as well my previous blog post here), but not on the merits. Rather, the Federal Circuit concludes that, because (1) the district court's FRAND royalty included, as one component, a release payment intended to compensate Ericsson for TCL's past infringement of Ericsson's SEPs, and (2) this release payment was a form of legal, not equitable, relief, the district court deprived Ericsson of its constitutional right to trial by jury on the amount of the release payment (see pp. 17-27). Relatedly, the court also concludes that the statement TCL relies on in support of its theory that Ericsson waived its right to a trial by jury on the amount of the release payment did not, in fact, constitute a waiver (see pp. 24-26).
So, back to the drawing board, apparently. The fact that the U.S., uniquely among the nations of the world as far as I can tell, still has juries decide patent matters may well be correct under our Seventh Amendment, but it seems crazy to me as a matter of policy--particularly in FRAND cases like this one. I really have no idea how one can expect a jury of lay people to come to a reasoned determination of something of this complexity, even if (as I think will be the case, see p.27) the jury will only determine the amount of the release payment (that is, past damages).
I believe: if the release payment is to be decided by juries as legal remedy, it has to be restricted to the amount only for the patents of which the validity and infringement by the defendant have been already confirmed, not for the whole patent portfolio of the plaintiff, like in usual patent infringement cases.
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