2024 US-China Patent Valuation and Damages Workshop

A workshop report titled The 2024 Patent Valuation and Damages Workshop: A US-China Comparative Law Perspective is available on ssrn, and should be of interest to anyone following U.S. and Chinese patent and/or SEP litigation.  I remotely delivered a presentation on compensatory patent damages in the U.S. at the workshop, which was held in May 2024 and included presentations by several other U.S. and Chinese participants.  Here is a link to the report, and here is the abstract:

This report summarizes the proceedings of the 2024 Patent Valuation and Damages Workshop: A U.S.–China Comparative Law Perspective, jointly organized by the Berkeley Asia IP & Competition Law Center (BAIC), Berkeley Center for Law and Technology (BCLT), KoGuan School of Law at Shanghai Jiao Tong University, and the Institute of Intellectual Property and Competition Law. Held in Shanghai on May 28, 2024, the workshop convened leading judges, scholars, practitioners, in-house counsel, and economists from both countries to examine the evolving frameworks for patent damages and valuation. As the inaugural workshop on patent law and practice from a U.S.–China comparative perspective, pioneered by BAIC and BCLT, it explored compensatory damages (lost profits, reasonable royalties, price erosion, apportionment), punitive damages and their deterrence effects, the challenges of valuing and licensing standard-essential patents (SEPs), and the “important but limited” role of judicial rate setting in shaping technology markets. With attention to both theoretical underpinnings and practical case studies, the report highlights key similarities and divergences in practice, as well as the implications for global patent litigation and licensing. By capturing this pioneering comparative dialogue, the report provides valuable insight into the jurisprudential evolution of patent remedies and their broader policy context in the world’s two largest innovation economies.

Bonadio, Kansara & Tayal on the Eu-China WTO Arbitration Panel Decision

Although I (and others) have blogged about the July 2025 WTO arbitration award finding China’s antisuit injunction policy to be in violation of TRIPS (see, e.g., here, here, and here), this is the first (though I know it will not be the last) full-length article on the arbitration award that has come to my attention:  Enrico Bonadio, Mahak Kansara & Vansh Tayal, Litigating Patent Standards:  the EU-China WTO Dispute on Anti-Suit Injunctions, 47 EIPR __ (forthcoming 2025).  Here is a link to the ssrn version, and here is the abstract:

 

This article examines the WTO dispute between the EU and China concerning Chinese courts' use of anti-suit injunctions (ASIs) in standard-essential patents (SEPs) litigation. The Arbitrators' ruling of 21 July 2025 overturned key Panel findings, holding that China's ASIs policy violates Articles 1.1, 28.1, and 28.2 of the TRIPS Agreement by frustrating foreign patent holders' rights to enforce and license SEPs internationally. Significantly, the Arbitrators articulated a new and problematic "anti-frustration" rule, clarifying that measures which systematically undermine substantive IP rights and their cross-border enforcement contravene WTO/TRIPS obligations. The article critically assesses the legal and policy implications of the Arbitrators' interpretations, exploring their impact on global SEPs enforcement and the evolving interface of international IP and the WTO dispute resolution system.

The article does a good job explaining the dispute, and devotes considerable attention to the arbitrators’ conclusion that TRIPS article 1.1 embodies some sort of “anti-frustration” principle, which China’s anti-suit injunction policy breached.  (See Arbitration Award para. 4.74, in which the panel states that the corollary of the obligation set forth in article 1.1 to "give effect to the provisions of th[e] Agreement" in members’ territory “is to do so without frustrating the functioning of the systems of protection and enforcement of IP rights implemented by other Members in their respective territories.”)  Although (for now, at least, and unlike Bonadio et al.) I remain agnostic on whether the arbitrators were correct in inferring some sort of “anti-frustration” principle into article 1.1, I fully agree that the arbitrators articulation of that principle leaves much to be desired.  Taken to its logical conclusion, the anti-frustration principle would not only do away with ASIs altogether (even the more traditional, limited ones that the U.S. and U.K. might occasionally grant), but also would seem to cast many other national practices into doubt—including not only awards of global FRAND royalties as in the U.K. and China, but also the practice of the German courts to routinely grant injunctions in SEP cases (which, as a practical matter, often compel global settlements).  Of course, it would be crazy to say that Germany’s obligation to give effect to the provisions of TRIPS forbids Germany from entering territorially-limited injunctions because doing so frustrates the ability of other member states to adjudicate FRAND disputes pending before their courts, but the fact that the anti-frustration principle would lead to that paradoxical (and clearly wrong) result indicates that there must be something amiss with an unconstrained anti-frustration principle.  Unfortunately, the arbitration panel didn’t spell out the constraints, though as Bonadio et al. suggest, perhaps the other EU-China dispute pending before the WTO (involving China’s willingness to render global FRAND awards) will clarify matters.  

From Around the Blogs

1. On SpicyIP, Ambika Aggarwal has published two posts (here and here) concerning the Supreme Court of India’s recent decision dismissing an appeal from a 2023 Delhi High Court judgment in Ericsson v. Competition Commission of India (CCI), previously reported on this blog here, holding that the “CCI cannot exercise jurisdiction over actions of an enterprise that are in exercise of their rights as a patentee.”  Although the Supreme Court's decision is apparently not publicly available yet, it is reported that the Court dismissed the action on the ground that the parties had, in the meantime, settled their dispute.  Dr. Aggarwal argues, persuasively in my view, that the current state of affairs in India leaves a gap in antitrust oversight of SEP-related issues, and is at odds with the positions taken in other major markets including the E.U., the U.K., China, Japan, and Korea.  For discussion on ip fray as well, see here and here.

2. Enrico Bonadio has published two posts on SEP matters on the Kluwer Patent Blog.  The first, titled Judgment Without Trial:  The Erosion of Appellate Restraint in UK Patent Law, takes issue with the Court of Appeal’s decision in Optis Cellular Tech. LLC v. Apple Retail UK Ltd., [2025] EWCA Civ 552 (previously discussed on this blog here), increasing the award of global FRAND royalties from $56 million to $502 million.  Professor Bonadio contrasts this result, which he views as the appellate court improperly serving as finder of fact, with the Federal Circuit’s en banc decision in EcoFactor v. Google (previously discussed on this blog here), which after reversing the trial court for admitting expert testimony in violation of the rules of evidence remanded for a new trial on damages.   He also recently published a post titled Restoring Balance in SEPs Governance—Next Steps for the EU After the Regulation’s Withdrawal.  He argues, inter alia, that a step forward “would be a strategic referral to the CJEU that addresses the gaps and inconsistencies left by Huawei v. ZTE.”

3.  Also on Kluwer, Jiří Slavík published Substantiating Infringement (or Risk Thereof) at the UPC:  Divide & Conquer or One to Rule Them All?, discussing, inter alia, UPC decisions on whether courts may grant preliminary or permanent injunctions throughout all of the contracting member states (CMSs) and, after BHS Hausgeräte (discussed on this blog here) non-CMSs as well.

A Couple of New Articles on FRAND/SEPs

1. Michael Nieder has published an article titled EPG-Widerklage auf gerichtliche Bestimmung einer angemessenen FRAND-Lizenz?—Zur Entscheidung der LK Mannheim vom 22.11.2024—UPC CFI 210/2023 (“UPC Counterclaim for a Judicial Determination of a Reasonable FRAND License?—On the Nov. 11, 2024 Decision of the Mannheim Local Division— UPC CFI 210/2023”), 2025 GRUR Patent 401.  Here is the abstract:

The EPG [UPC] has so far issued two injunctions for infringement of a standard-essential patent (SEP) in cases where the FRAND issue played a role.  These are the decisions of the EPG Local Division Mannheim of November 22, 2024—UPC CFI 210/2023—Panasonic/OPPO an OROPE and the EPG Local Division Munich of December 18, 2024—UPC CFI 9/2023—Huawei/Netgear.  Due to corresponding counterclaims by the defendants, the question of the possibility of a court determining the appropriate rate for a FRAND license arose only in the Panasonic/OPPO and OROPE case.  The following remarks deal with this issue.

In the course of the article, Dr. Nieder argues against the position taken by Matthias Leistner (who believes the UPC has jurisdiction to determine FRAND rates), and in favor of the position taken by Peter Meier-Beck and by Tim Dornis (that it doesn’t).  For my previous commentary on the Mannheim decision, see here; for previous posts on Dr. Leistner’s and Judge Meier-Beck’s takes on the issue discussed by Dr. Nieder, see here and here.   

2.  Runhua Want has posted an article on ssrn titled Irrational Unwillingness in SEP Licensing, 34 Tex. Intell. Prop. L.J. __ (forthcoming 2025).   Here is a link to the paper, and here is the abstract:

The role of injunctions in guiding standard-essential patent (SEP) licensing negotiations is important but remains unclear. Many SEP holders argue that a high threshold for injunctions fails to protect them against holdout and efficient infringement. By contrast, SEP implementers are concerned about patent holdup resulting from threats of injunctions by SEP holders. This conflict raises a broader policy issue: how should legal institutions guide parties toward efficient licensing negotiations? However, since the United States withdrew its most recent guidance in 2021, it has lacked a clear position on this issue. Other jurisdictions likewise face challenges in designing effective injunction rules. Among these challenges, the definition of unwilling licensees, a key factor in granting injunctions, remains inconsistent and under development. This Article addresses the unsettled role of injunctions in SEP licensing negotiations and contributes to the policy debate by analyzing cognitive and structural barriers to implementer cooperation. Specifically, it examines whether injunction rules can be designed to effectively enhance the willingness of implementers to license. To that end, it reviews public feedback submitted in a semi-structured survey, which was conducted by the United States Department of Justice in 2022. The survey examined both the thresholds for injunctions and the standards for identifying unwilling licensees. This Article documents various approaches to identifying unwilling licensees, as suggested in the feedback. Based on the documented feedback and textual analysis, the Article identifies four motivations that underline SEP implementers' lack of cooperation in licensing negotiations: 1) resistance to holdup, 2) information asymmetries, 3) habitual holdout and efficient infringement, and 4) financial constraints. These motivations reflect not only strategic behavior but also deeper cognitive biases held by both SEP holders and implementers. This Article argues that due to the cognitive biases, injunction rules, regardless of their design, face inherent limitations in promoting efficient licensing.

Hao on ACT v. OPPO

As a follow-up to my post on Friday, which noted among other things a recent paper by Zhang Guangliang and Geng Bang titled An Active Exploration of Global Licensing Rate Adjudication Methods for Standard Essential Patents:  The Chinese OPPO v. Nokia Case, 15 Queen Mary J. Intell. Prop. 238 (2025), I should mention another recent paper discussing the other major Chinese SEP case from late 2023, Advanced Codec Technology, LLC v. Guandong Oppo Mobile Telecommunications Co.  The paper is by Yuan Hao and is titled Advanced Codec Technology, LLC v. Guangdong Oppo Mobile Telecommunications Co., Ltd.: First Substantive Determination of FRAND License Fee by the Chinese Supreme People’s Court, forthcoming in FRAND Cases in Context (Jorge L. Contreras, ed., Edward Elgar forthcoming).  (Professor Contreras’ edited volume FRAND Cases in Context, to which I also continued a chapter—on the U.S. Apple v. Motorola litigation—should be out in a few months, I would think.)  Here is a link to the draft paper, and here is the abstract:

This book chapter examines Advanced Codec Technology, LLC v. Guangdong Oppo Mobile Telecommunications Co., Ltd., the Supreme People's Court of China's first substantive determination of a FRAND license fee. This judgment is significant for its explicit recognition of the comparative license approach (CLA) as a methodology for assessing FRAND royalties, coupled with concrete guidelines for selecting truly comparable licenses. Equally important, the Court characterized FRAND licensing disputes as di yue guo shi (pre-contractual obligations, or culpa in contrahendo) under Article 500 of the Civil Code, establishing a structured framework for assessing both SEP holders' and implementers' faults during negotiations. By integrating fault assessment into damages apportionment, the judgment underscores that both parties must engage in good-faith negotiation efforts, potentially shifting Chinese FRAND litigation toward a more procedure-oriented model. This chapter further situates ACT v. Oppo within the broader trajectory of Chinese SEP jurisprudence, compares it with other landmark cases, and identifies unresolved questions for future clarification by the SPC-ranging from the scope of FRAND-specific good faith, to the role of fault in damages calculation, to thresholds for "adequate negotiations." Properly resolving these open issues will enhance the doctrinal coherence of Chinese FRAND law and its alignment with global SEP enforcement practices.

Unlike the OPPO v. Nokia case, which resulted in the first-ever Chinese case awarding global FRAND royalties, the Advanced Codec case awarded China-only royalties; but it is significant for its discussion of comparable licenses, fault, and the doctrinal basis for Chinese courts’ awarding of FRAND royalties—and, of course, because unlike the other case it comes from the Supreme People’s Court.  In any event, this is a very informative article.

Recent Articles on Damages in China

Two recent articles in the Queen Mary Journal of Intellectual Property may be of interest to readers who follow developments in Chinese patent/SEP litigation.

1. Zhang Guangliang and Geng Bang have published An Active Exploration of Global Licensing Rate Adjudication Methods for Standard Essential Patents:  The Chinese OPPO v. Nokia Case, 15 Queen Mary J. Intell. Prop. 238 (2025).  Here is the abstract:

The decision rendered by the Chongqing First Intermediate People’s Court in OPPO v Nokia represents a landmark moment in the adjudication of global licensing rates for SEPs within the Chinese judicial system. This ruling not only expedited a resolution between the parties, who had been entangled in over 100 global SEP litigations for two and a half years, but also made significant advancements in the methodologies employed for determining global SEP licensing rates. The case achieved three pivotal breakthroughs in the context of 5G SEPs across global jurisdictions: it established the first ruling on the cumulative industry rate for 5G standards, determined the inaugural generational technical value ratio for multimode devices spanning 2G-5G and rendered the first adjudication of a global licensing rate for 5G multimode devices. This case has substantially enriched the frameworks for adjudicating global fair, reasonable and non-discriminatory (FRAND) licensing rates and has further propelled the evolution of global adjudication rules governing FRAND licensing for SEPs.

2. Renjun Bian has published an article titled Explaining the ‘Low and Unexplainable’ Patent Damages in China:  An Empirical Analysis of 992 Judicial Opinions, 14 Queen Mary J. Intell. Prop. K. 405 (2024).  Here is the abstract:

Patent damages in China are commonly criticized as low and unexplainable, which raises concerns over the overall credibility of China’s patent system. This article describes and reports the results of a large-scale empirical analysis of 992 invention patent infringement lawsuits decided by Chinese courts between 2014 and 2018 with damages awarded. The results show that whether patent damages in China are low depends on the selection of standards. If compared with damages granted by courts in the United States or the expectations of patent holders, patent damages in China are undoubtedly low. However, if considering the patent holder’s actual losses – a more rational standard – the allegation of low patent damages does not stand. In addition, around 64.1% of the variations in patent damages in China can be explained by pre-selected ex ante factors, among which proxies for patent value and scale of infringement play an important role. These findings demonstrate that patent damages in China are not as low and unexplainable as commonly believed. Instead, the rather ‘low’ damages compared to their counterparts in the United States reflect the main body of patent infringement lawsuits between small entities over technology improvements on small widgets and goods in China. 

3. Also of interest, in regard to China and SEPs, is an essay by Michael Franzinger in today’s Law360, titled How WTO’s Anti-Suit Injunction Ruling Affects IP Stakeholders.  For my previous post on the recent ruling by a WTO arbitration panel, finding in favor of the E.U. in its case against China, see here.