Thursday, April 7, 2022

From Around the Blogs: FRAND News

1.  On Law360, Noah Brumfield published an essay titled What DOJ'S Shifting Stance on IP Means for SEPs, Mergers.  The articles discusses, among other matters, the USPTO, DOJ, and NIST Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments, which (as previously noted here) would replace these agencies' 2019 (Trump-era) Policy Statement, which in turn replaced the 2013 (Obama-era)Policy Statement.  As the author notes, the draft policy statement "avoids wading into important questions of what it means to be FRAND," and by focusing "on process over substance reflects a cautious and uncertain view of the role of antitrust agency in policing standards-based IP policies."  He also speculates on how the pending revisions to the DOJ/FTC  merger guidelines may affect acquisitions of patent portfolios.

Also on Law360, David Kappos and Andre Iancu published another tiresome screed against the draft policy, SEP Draft Policy Imperils US Investment In Innovation, for those who have a taste for that sort of thing.

2.  JUVE Patent published a post titled Munich Regional Courts takes new approach to FRAND, discussing guidance provided by Presiding Judge Georg Werner in the pending Nokia/OPPO litigation. According to Judge Werner, both SEP owner and implementer "must demonstrate willingness to conclude a licence over a long period of time," in the hope that the parties will agree to terms during the course of proceedings.  This would be consistent with the German courts' reluctance, which I believe I have noted previously and which contrasts with the practices of courts in the U.K., China, and the U.S., to themselves establish the terms of FRAND licenses.  Florian Mueller also has excellent coverage of this on FOSS Patents--as well as a follow-up post titled Great news for standard-essential patent holders: Munich court looking to streamline multi-patent SEP disputes through unified FRAND hearing in 'lead case' and sequencing of trials, discussing a new procedure for FRAND cases in which the court will decide a "lead case" first  with the objective "to explore the possibility of a settlement based on the lead case."

3.  JUVE also published a post titled Federal Court of Justice considers SEP questions in IP Bridge dispute, discussing a case pending before the German BGH (Federal Supreme Court) which, according to the author, will address, inter alia,  the question of whether the SEP owner's offer is FRAND-compliant if  it "is compliant for the average licence seeker but not for individual market participants based  on their business."  

4.  FOSS Patents also published a post titled Philips, Xiaomi settle standard-essential patent dispute: interesting questions involving FRAND transparency, French jurisdiction, ETSI responsibility left for another day.  The post notes that the settlement, announced by a court in London in concurrent litigation there, will obviate the need for the trial court in Paris to set FRAND terms or to determine if ETSI has any responsibility for SEP owners' compliance with their FRAND obligations--but that that latter issue may be resolved in some other pending case.

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