Tuesday, December 17, 2019


1.  I previously noted Alex Woolgar's IPKat post on the Karlsruhe OLG's October 30 decision in Philips v. Wiko.  More recently,  Hetti Hilge discusses the case on the Kluwer Patent Blog in her post titled Another German FRAND Ruling-OLD Karlsruhe, Judgment of 30 October 2019, 6 U 183/16 (Philips v Wiko).  Although the two posts necessarily cover a lot of the same territory, Ms. Hilge's post also states that the Karlsruhe court allowed the patent owner to obtain information on the defendant's costs and profits, "in direct opposition to the judgment of the OLG Duesseldorf according to which an SEP holder who has not (yet) complied with its FRAND obligations cannot request more than a FRAND royalty as damages (and not, e.g., infringer’s profits) so that information on cost and profits is not required."

2.  While we await the U.K. Supreme Court's decision in Unwired Planet and Conversant, Bloomberg News has reported that InterDigital recently filed an infringement action against Huawei in the U.K., asking the court to determine either that its offer to Huawei was FRAND or to set a global FRAND rate.  According to the article, Huawei had previously filed its own action against InterDigital in Shenzhen, asserting that InterDigital's offer to license its SEPs was not FRAND.  (For InterDigital's announcement, see here.)  Can yet another antisuit (anti-antisuit) injunction be far behind?

3. On JUVE Patent, Konstanze Richter recently published an article titled Focus on France in Philips and TCL FRAND Battle, discussing litigation brought by Philips against TCL in England and by TCL against Philips and ETSI in France.  According to the article, "TCL is challenging whether the UK court has the jurisdiction to rule on the FRAND issue. The company argues that, as the European Telecommunication Standards Institute is based in the south of France, the French courts have jurisdiction. TCL therefore filed a counterclaim at the Tribunal de Grande Instance in Paris in February. This was an attempt to clarify the FRAND licence issue at the French court."  A hearing took place in Paris last week, and a decision on whether to allow the matter to proceed is expected in February.

4.  Matthieu Dhenne has published an article titled Calculation of FRAND Royalties:  An Overview of Practices Around the World, 41 EIPR 755 (2019).  The abstract states that "This article aims to give an overview of the methods of calculating FRAND royalties applied by the jurisdictions all around the world."  The article discusses the various methodologies courts have used to determine the FRAND rate (hypothetical negotiation, comparables, top-down, incremental value, and bottom-up, as well as differing views within the E.U. concerning what information the patent owner must produce to comply with Huawei v. ZTE.  In addition, the author discusses issues relating to the royalty base and apportionment (EMVR, SSPPU).

5.  As reported on IP Watchdog and Bloomberg, entities including Apple and Ford Motor have sent a letter to U.S. Secretary of Commerce Wilbur Ross and USPTO Director Andre Iancu, urging the USPTO to keep in place the USDOJ/USPTO 2013 Policy Statement on Remedies for the Standards-Essential Patents Subject to Voluntary F/RAND CommitmentsAs I have previously stated, I agree that the 2013 Policy Statement is sound (a sentiment also shared by Professor Michael Carrier, see here), and have criticized Antitrust chief Makan Delrahim's decision a year ago to withdraw from it.

6.  Last but not least, here is Qualcomm's reply brief in FTC v. Qualcomm, filed last Friday.

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