Judge Luckern has heard all about this French Law concept in 2 Prior cases ..
The experts for Samsung neglect to explain that they not only were paid as experts ..They also published a book on the subject..and in the end Samsung is paying royalty to Ericsson for their 2G & 3G Patents via SETTLEMENT..LOL..
Wireless Communication Devices and Equipment, 337-TA 577 (Samsung v. Ericsson) and 337-TA-583 (Ericsson v. Samsung):
FRANDly fire: are industry standards doing more harm than good?
Pat Treacy and Sophie Lawrance *
Legal context: The role of IP rights in standards; the meaning of the obligation imposed by many standards bodies on essential patent holders to licence on fair, reasonable, and non-discriminatory (‘FRAND’) terms; the example of IPR policy of the European Telecommunications Standards Institute; recent US developments.
Key points: Industry standards are of key commercial and technical significance. Yet many standards are currently burdened by litigation between essential patent holders and licensees. Such standards bodies have been slow to give guidance on the meaning of the obligations imposed on essential patent holders. This article takes the example of the obligation to licence essential patents on FRAND terms, analysing the obligation in the context of European competition law. The article concludes with some suggestions for points for companies to include in their internal policies on licensing standards essential patents.
Practical significance: The meaning of the obligation to licence on FRAND terms is very important for licensors and licensees alike. This article puts the obligation in context and discusses the various approaches which may be taken in practice.
Key Words: The development and production of new high-tech products and services, particularly in the field of telecommunications, is increasingly governed by groups of IP owners—usually actual or potential competitors—who form themselves into standard-setting groups. • One of the major benefits of standard-setting is that, once a key piece of innovation is developed, its proprietary does not exclude its use by others but allows its use by any third party willing to accept a licence on FRAND (‘fair, reasonable, and non-discriminatory’) terms. • The authors examine the state of legal wisdom and experience regarding FRAND terms, particularly in the light of the need to comply with competition law requirements and the ease with which FRAND licensing obligations may be abused.
* Pat Treacy is a partner, and Sophie Lawrance an associate, in the competition department of London law firm Bristows. The authors were part of the legal team representing Samsung Electronics Co Limited in litigation with Ericsson in 2006–2007 (now settled), one aspect of which related to issues concerning the 2G and 3G mobile telephone standards. The views expressed in this article are those of the authors alone. The authors would like to thank their colleagues (in particular Philip Westmacott) for their views on the issues discussed in this article.
