Monday, August 9, 2021

From Around the Blogs: FRAND News

1.  According to reports, two recent decisions of the Düsseldorf Oberlandesgericht have rejected TCL’s bid for a stay of an injunction pending appeal, in litigation brought by Dolby and Philips relating to FRAND-committed SEPs that are part of the Via Licensing pool.  Both panels concluded that TCL was an unwilling licensee because of its dilatory behavior in making a good-faith counteroffer.  For discussion, see Florian Mueller, Dusseldorf appeals court narrowly avoids divergent outcomes in Via v. TCL patent cases concerning Sisvel v. Haier FRAND defense, deems TCL unwilling either way, FOSS Patents, July 30, 2021, and Amy Sandys, Sisvel vs. Haier: Düsseldorf court follows case law in Via Licensing and TCL dispute, JUVE Patent, July 28, 2021 (discussing the first of the two decisions only).  Also relevant to the interpretation by the German courts of Sisvel v. Haier are two discussions of a case between LG Electronics and TCL, one by Florian Mueller titled Flimsy patent exhaustion argument weighs against willingness to take standard-essential patent license, and § 315 still no safe harbor: Mannheim court, and one by Jan Bösing and Tilman Müller-Stoy titled Unreasonable counter-offer in FRAND negotiations – Mannheim District Court, judgment dated March 2, 2021 – docket no. 2 O 131/19.

2. Florian Mueller also has an interesting three-part series titled SEP Licensing Negotiation Groups -- Part I: analogy to patent pools entails false symmetry between facilitating and complicating automotive patent licenses; SEP Licensing Negotiation Groups -- Part II: justice delayed is justice denied when unwilling licensees can hide behind a consensus-building effort; and SEP Licensing Negotiation Groups -- Part III: legalization of buyers' cartels would invite group boycott and collective hold-out.  The author argues against a proposal, that car makers should be allowed to form “licensing negotiation groups” (LNGs) to jointly negotiate licenses with patent pools and SEP owners.  It’s not entirely clear to me whether the proposal envisions that such an LNG should be per se legal (to use U.S. terminology), that is, immune from antitrust liability, or subject to some lesser form of antitrust scrutiny involving a balancing of pro- and anticompetitive effects (in U.S. terminology, subject to the rule of reason).  Something like this has been under discussion before, of course, and reactions have been all over the map.  Former USDOJ Antitrust Division chief Makan Delrahim would have considered such conduct on the part of prospective licensees to be per se illegal, while a recent article by Gregory Day and W. Michael Schuster appears to take the view that they should be per se legal.  The 2007 Antitrust Modernization Commission, by contrast, took the more nuanced position that “Joint negotiations with intellectual property owners by members of a standard setting organization with respect to royalties prior to the establishment of the standard, without more, should be evaluated under the rule of reason.”  See also Group of Experts on Licensing and Valuation of Standard Essential Patents 'SEPs Expert Group' (E03600), Jan. 2021, Proposal 75 (stating that “It is, therefore, proposed to develop an appropriate mechanism and controls to allow licensee negotiation groups (industry associations representing member implementers or groups of individual implementers) to jointly negotiate licences with individual SEP holders and SEP patent pools without the risk of getting in conflict with antitrust regulation.”)   Florian Mueller also notes some discussion of this issue in a recent report by the Japanese Ministry of Economy, Trade, and Industry, which I had not seen, taking a rather cautious view of joint licensing.

3. On IP Watchdog, Tim Pohlmann published an article titled Drilling Down on Criticism of Top-Down Approach to Determining Essentiality, responding to a piece by Matteo Sabattini (previously noted here); and Curtis Dodd and Chris Dubuc published The Burden of Proof Regarding Cellular Wireless Standard Related Patents:  Final Thoughts for Our Critics.

4. There was some further discussion of the ongoing Optis v. Apple SEP litigation in the U.K., previously noted here, by Nadine Bleach (on EPLaw) and by Enrico Bonadio, Luke McDonagh, and Aarushi Mittal on the Kluwer Patent Blog.

5. Finally, Amy Sandys posted an article on JUVE Patent titled Düsseldorf on new ground with partial AASI against Xiaomi; Jonathan Putnam, Hieu Luu and Awo Bos published a piece on Law360 titled How SEP Owners Can Mitigate the Effects of Holdout (arguing, among other things, that “the market effects of holdout listed above act as a disincentive for innovation,” a proposition for which I have yet to see empirical evidence); and Matthew Bultmann published a piece on Bloomberg Law titled Biden Signals Shift Toward Tech on Standard Essential Patents.  

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