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FRAND Determination in TCL v. Ericsson and Unwired Planet v. Huawei: Same Same But Different?

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Picht,  Peter
MPI for Innovation and Competition, Max Planck Society;

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Citation

Picht, P. (2018). FRAND Determination in TCL v. Ericsson and Unwired Planet v. Huawei: Same Same But Different? Max Planck Institute for Innovation & Competition Research Paper, No. 18-07. doi:10.2139/ssrn.3177975.


Cite as: https://hdl.handle.net/21.11116/0000-0001-94B0-0
Abstract
Unwired Planet/Huawei (UK) and TCL/Ericsson (US) are remarkable rulings on the FRAND-licensing of SEPs, not least because they tackle the task of a full-blown FRAND-royalty determination. Equally remarkable is a comparison between them since the two courts looked – it seems – at a similar set of facts but reached quite different results. The present paper focusses on a key reason for these differing outcomes, namely the courts’ treatment of “top-down” and “Comparables”, two core approaches in FRAND royalty calculation. It argues, i.a., that it creates more problems than solutions to treat the public announcement of royalty rates as a “pledge”; that FRAND commitments made under EU (Member State) law and regarding EU patents ought to be interpreted with a view to EU law; that the two courts interpret the “ND”-requirement differently; and that the weighing and adjusting of Comparables may be distortive. As to the relative importance of the calculation approaches, Comparables seem more relevant regarding the facts at issue.