The Never-Ending Fight Over What is Fair, Reasonable & Non-Discriminatory (FRAND)

The Never-Ending Fight Over What is Fair, Reasonable & Non-Discriminatory (FRAND)

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Earlier this year, Apple filed a complaint with the U.S. International Trade Commission (USITC) asking the agency to institute a Section 337 investigation against Ericsson, asserting a trio of patents related to millimeter wave technology used by electronic devices communicating on mobile 5G networks. The Section 337 complaint is the latest salvo in a legal battle that also had litigation pending in Texas federal courts. The dispute highlights the mounting tension between these two technology giants involving standard-essential patents (SEPs) and what exactly is a fair, reasonable and non-discriminatory (FRAND) royalty.

The SEP world has seen other major battles seemingly too large and too acrimonious to resolve settle through rather anticlimactic settlements involving patent license agreements. Case in point, the fight between Qualcomm and Apple regarding Qualcomm’s chip licensing practices worked its way through multiple jurisdictions before resolving with a licensing agreement in April 2019, which dismissed all worldwide litigation between the two companies. Even still, that agreement hasn’t stopped Apple from pursuing validity challenges against patents covered by the licensing agreement with Qualcomm.

This panel will discuss the ongoing litigation between Apple and Ericsson, the Biden Administration’s position on the appropriateness of injunctive relief for SEP owners, the issue of hold-up versus hold-out, and the impact anti-suit injunctions are having on SEP litigation worldwide.

CLE Materials (requested in Virginia only)

Note: The materials below are in no way intended to limit the debate or discussion, but rather are intended to prime the well for a thoughtful discussion.

Policy Shift Against SEP Rights Poses Risks for U.S. Innovation and Undermines Mandate of the ITC

Bipartisan Groups of Administration Officials, Senators, Voice Opposition to New Joint Policy Statement on SEPs

Apple/ Ericsson Dueling FRAND Suits Highlight Issues With Recent Proposed Changes in DOJ’s SEP Policies

Fifth Circuit Affirms Texas Court’s Judgment that Ericsson Complied with FRAND Obligations

Tillis, Michel and Iancu Back Ericsson in Heated International FRAND Dispute with Samsung