HTC v. Ericsson verdict is out – Bad faith all around?

Interesting verdict.  The jury concluded that Ericsson did not breach its contractual obligations to offer HTC a license to its SEP portfolio.  However, the jury also found that BOTH Ericsson  and HTC breached their obligation to negotiate for that license in good faith.

Lots to think about.  More to come.

Here is the verdict form.

11775490-0--30828 HTC v Ericsson verdict form

Smallest Saleable Patent Practicing Unit (SSPPU) – Another Court Affirms the Obvious

In the topsy-turvy world of Standard Essential Patent (SEP) litigation, a court acknowledging the obvious often counts as news. Thus, when Judge Gilstrap in EDTX noted the other day in an order before trial (Doc 376) that the ETSI IPR policy does not require royalties being calculated on use by the smallest saleable patent practicing unit (SSPPU) as the base, it generated breathless headlines (Bloomberg).

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China’s anti-monopoly law as a weapon against foreigners

I am very pleased I can now share the article that I co-authored with Doug Clark. The article first appeared in IAM Issue 92, published by Globe Business Media Group – IP Division. To view the issue in full, please go to www.IAM-media.com

To read the article please click here.

John Marshall Law School SEP Licensing Program

In October I was honored to be part of the John Marshall Law School IP Executive seminar program run by the inestimable Daryl Lim, and to be part of an all-day, three-person panel on Standard Essential Patents (SEPs). My co-panelists were Graham Bell of Cubicibuc Ltd. and Randall Rader, former Chief Judge of the US Court of Appeals for the Federal Circuit.

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Standard Essential Patents: What Every IP Attorney and In-house Counsel Should Know Seminar

Standard Essential Patents: What Every IP Attorney and In-house Counsel Should KnowDavid L. Cohen is thrilled to be a panelist at the Standard Essential Patents seminar for IP executives at the John Marshall Law School in Chicago, IL.

The seminar is designed for IP attorneys, licensing professionals, and technologists interested in gaining valuable insights into the why and how of SEP development and licensing. It will be taught by a renowned former jurist, a respected licensing executive, and an innovative IP strategist who will bring their perspectives to bear on this fascinating field.

Read more about the seminar and register here.

Standard Essential Patents and Antitrust Law

Standard Essential Patents and Antitrust Law by David L. CohenThis past April, I participated in a 7-person panel at the Fordham IP Institute comprised of lawyers with significant interest in the telecommunications industry. The primary focus of the discussion centered around the various issues facing Qualcomm within the context of antitrust law, as well as with a broader perspective. The discussion was timely in light of the current US trade issues with China where Qualcomm appears to be a major bargaining chip. Read more

Huawei’s injunction against Samsung – a universally applicable rule or something else?

I wonder whether this logic will be applied to Chinese companies like ZTE – last I heard Nokia hasn’t been able to secure a license for some 15+ years.  (See para 2.5 https://lnkd.in/e_46B3A)

 

Ericsson – the TCL/Ericsson decision and more!

Some big decisions have come out this year that really have put a value marker on Ericsson’s portfolio – Interestingly both courts (in the California, vs. TCL, and in the UK in the Unwired Planet decision) which have provided portfolio rates utilized a top down approach (some version of proportionality) to determine the royalty  (for the fair and reasonable part) and crosschecking the rates with comparable licenses (for the non-discriminatory part – which in the Cali decision argues that smaller competitors likes TCL must be treated the same as larger competitors lick Apple).

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New Ericsson Portfolio rate determination for 4G Handsets

Well this is big.   A judge in California found a FRAND 4G rate for Ericsson as against TCL.  I wonder how this will sit with the Birss opinion in the UK. The commentators will surely review the papers over time, but the nutshell according the first reports is that the judge ordered a rate At .45 percent of TCL’s U.S. sales and .31 percent for overseas sales. Ericsson had been looking for an effective rate of between .87 and 1.01 percent based on its two best offers before TCL sued in 2014. Selna also ordered TCL to pay Ericsson $16.4 million for past unlicensed sales from 2007 through 2014, much less than the $97 million Ericsson had been seeking.

Here is the injunction https://www.scribd.com/document/367797012/Document-4

Here is an article about the judgment https://www.law.com/therecorder/sites/therecorder/2017/12/22/calif-judge-in-first-of-its-kind-ruling-sets-frand-rate-on-ericsson-patent-portfolio/

Qualcomm and Ericsson announce their 5G handset rates – Sky hasn’t fallen yet…

According to this article – Quaclomm has a maximum potential royalty payment of $16.25 for 5G only and or $25 for multimode for a premium phone ranging in price from $600 to $1,000, and $1.63 to $2.50 too much for a $50 phone.

Ericsson has announced previously a rate of $5 a phone and in developing countries, half that.  I can’t imagine Nokia is much more than Ericsson.  https://www.eetimes.com/author.asp?section_id=36&doc_id=1332657

Between Ericsson, Qualcomm and Nokia you have well over half if not 2/3 of the net SEP licensors covered for handsets – which for premium handsets (According to the article) amounts to $40/phone.  Even if you add up more licensors to make it $50/phone, or a net total royalty burden of 1/12 of the ASP, I don’t see where some people get $120 from  https://ec.europa.eu/commission/commissioners/2014-2019/vestager/announcements/protecting-consumers-exploitation_en – unless you have political motivations.