TCL v Ericsson overturned on appeal

Published

Dec 05 2019

Written By

Richard Vary

Partner
UK

I specialise in patent disputes in the technology and communications industry.

Readers will remember the news of Christmas 2017. Judge Selna in the Central District of California determined the FRAND royalties that TCL should pay to Ericsson. The decision attracted comment because the rates were very much lower than the findings that Mr Justice Birss had made in relation to Ericsson's portfolio in Unwired Planet, despite similar evidence.

Today the Court of Appeals of the Federal Circuit overturned that decision: judgment here.

Ericsson appealed on two grounds: that it had been deprived of its right to a jury trial, and that Judge Selna's calculations contained many errors (some of which are explored here).

Happily for Ericsson, but disappointingly for followers of FRAND, the CAFC agreed with the first of those grounds. That means it did not need to look at the second.

The right to a trial by jury arises from the Seventh Amendment to the US constitution. This provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre-served . . . .” . This is understood to mean that if the Claimant would have had a right…