Supersize this: Unwired Planet American style.
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On Friday evening, as many of us were settling down to celebrate Christmas, from the City of Angels there came tidings of a FRAND injunction…
In the case of TCL v Ericsson, the Honourable James V. Selna, Judge of the District Court of the Central District of California (Los Angeles) handed down a court-ordered FRAND license . The case has much in common with the UK's Unwired Planet decision earlier in the year. Like Mr Justice Birss, Judge Selna has used comparable licences and a top-down analysis to reach a FRAND rate. But this decision considers the entire Ericsson portfolio. It uses a wider range of comparable licences. And it weighs in at 140 pages in total. It's been supersized.
It was not many months ago that US District Court Judge James Robart, speaking at the Annual San Francisco meeting of the IPO, strongly criticised the Unwired Planet decision. Robart argued that Birss J. had been wrong to find specific royalty rates for the technology, rather than offering a range . He stated that he did not expect the judgment to be followed in US courthouses. Similar comments had been made by former Chief Judge for the Federal Circuit Paul Michel, who told IAM that the US legal system was traditionally inward looking and so rarely paid much heed to overseas cases. That it may be so, but Judge Selna's decision has much in common with the decision of Birss J. And like Birss J, Judge Selna did indeed set specific royalty rates for the technology.
The decision, unfortunately, will not be bringing tidings of comfort and joy to the holders of standards-esential patent portfolios. Although adopting a similar methodology to that used in Unwired Planet, on many points Judge Selna has adopted TCL's arguments over Ericsson's. As a result, the numbers generated are favourable to implementers.
