Timothy Syrett Image

Timothy Syrett

Partner

WilmerHale

Timothy Syrett is a partner at WilmerHale, is an intellectual property and antitrust litigator. He has particular experience with disputes at the intersection of antitrust and intellectual property law. He has litigated through trial a variety of issues relating to standard-essential patents in the telecommunications industry, including antitrust and contract claims, the determination of FRAND royalties, patent exhaustion, and license defenses, as well as defenses to infringement arising from standard-setting participation.

This article represents his personal views and not necessarily those of the firm or its clients.

For more information or to contact Tim, please visit his Firm Profile Page.

Recent Articles by Timothy Syrett

A Licensor’s FRAND Commitments Do Not Limit A Licensee’s Rights

Part one of this two-part series responding to a series of articles on FRAND statements addressed the appropriate royalty base for cellular standard-essential patents (SEPs). This article now addresses the fourth and fifth articles in that series, where the authors describe the “FRAND process.” The authors start from a mistaken premise that holders of SEPs subject to FRAND commitments enjoy more rights than all other patent holders traditionally possess, and that SEP holders’ FRAND commitments impose obligations on potential licensees rather than on the SEP holders themselves. For example, the authors appear to recoil at the idea that “SEP owners should prove to prospective licensees that licenses are needed.” As the authors apparently conceive of the FRAND process, potential licensees have no right to challenge the claims of SEP holders as to the necessity of a license. The only relevant question to them appears to be how large a royalty payment should be, without regard to the patent merits.

The SSPPU is the Appropriate Royalty Base for FRAND Royalties for Cellular SEPs

A recent series of five articles on IPWatchdog address various aspects of licensing cellular standard essential patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) terms by examining statements from entities involved with licensing. The authors also provide their commentary on the statements and cite various authorities that they suggest are consistent or inconsistent with principles advocated in the statements. The articles lean heavily in favor of the positions of a few companies that derive significant revenue from SEP licensing. For this reason, they fail to present a balanced view. Indeed, to read the series, one might conclude that the major priority for SEP licensing should be to extract excessive revenues for SEP patent owners. Quite the contrary, a key priority should be applying FRAND safeguards against outsized, windfall profits resulting from abuse of SEPs to the detriment of innovative companies that engage in research and development and supply products to the marketplace. Those safeguards include applying well-established principles of patent law to SEPs, including when it comes to patent valuation and patent litigation, where a patent holder is rewarded with fair royalties that reflect the incremental value of any infringed and valid SEP.