Litigating FRAND Rates After Fed. Circ. Ericsson Decision

Law360 (January 17, 2020, 3:17 PM EST) -- Notwithstanding that fair, reasonable and nondiscriminatory patent licenses are the standard way to deal with standard-essential patents, case law provides little clarity on how FRAND rates should be determined.

Given this — and the inherent difficultly in apportioning inventive value among the potentially thousands of SEPs that may encumber a given technological standard — litigants on both sides of FRAND cases understandably struggle with preparing and trying their respective damages cases.

But in this evolving legal area, certain best practices stand out for FRAND cases involving a retrospective “release payment” claim for past unlicensed sales: Litigants should focus on distilling a...

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