December 2018
AIPPI Japan
To view the published article in Japanese, click here.
What do autonomous driving, artificial intelligence, blockchain, big data, and Internet of Things (IoT) have in common? They are disruptive, evolutionary, and affecting all of us; they also rely on technology “standards” – common protocols to ensure interoperability among our devices. “Standards” refer to unified, technological protocols that enable inter-communications and collaboration among machines and software systems. Standards charge and drive our cars, secure our data, verify our financial accounts, program our appliances, and capture our memorable moments. Universally adopted and widely used, standards are also heavily patented, making patent disputes unavoidable and costly.
Companies, however, have tools to manage disputes arising from standards, assess litigation risks, and make informed decisions. Recent decisions of the courts in the U.S. and Europe present opportunities for negotiating burdens associated with using standards and provide frameworks for determining royalty rates and license terms. Additionally, the Japan Patent Office recently published “Guide to Licensing Negotiations involving Standard Essential Patents”, providing further guidance on licensing standard essential patents (SEPs).
SEP owners have committed to license the SEPs with fair, reasonable, and non-discriminatory (FRAND) or reasonable and non-discriminatory (RAND) (collectively F/RAND) terms. Despite such commitments, SEP owners and standard implementers frequently disagree on what F/RAND means. There have been significant, differences between SEP owners’ F/RAND offers and the F/RAND rates courts determined as proper. Recent court decisions are recognizing unique issues associated with SEP and SEP licenses, and offer additional guidance not only on F/RAND terms, but also on what amounts to improper SEP enforcements. Standard implementers are now better equipped than before to negotiate true
F/RAND licenses without extraneous demands. Because F/RAND commitments are binding contracts, standard implementers now have additional defenses unique to standard-related disputes to minimize injunction threats, control costs and risks, or even recover damages.
In our connected world, it is increasingly difficult for businesses to sell products without implementing any standard. A completely proprietary product, while possible, significantly limits its interconnectivity or interoperability. For example, IoT would have over 20 billion connected devices deployed by 2020. These devices‒electronics, medical, or others‒are wirelessly connected, such as by 5G, 4G, and 3G (fifth-, fourth-, and third-generations) mobile-communication standards or via Wi-Fi (wireless local-area networks). IoT devices, such as cars, TVs, refrigerators, lights, ACs, speakers, and toys, are coming from companies that rarely dealt with SEPs a decade ago. All businesses would soon run artificial intelligence (AI; also known as machine learning) if they are not already, and AI is increasingly relying on standards to communicate, to exchange data, and to learn from data. Cars will communicate with each other, and blockchains (or distributed ledger technologies) and AI are increasingly interoperative and always connected.
Standards are created by consensus, usually by those who share overlapped interests in implementing an inter-communicating, unified protocol. Standards encourage wide adoption and give consumers more choices, because products from different brands all work together while competing against each other. For example, mobile phone and integrated-circuit (IC) suppliers, universities, and research institutes worked together to define and promulgate the 3G, 4G, and 5G mobile-communication standards; car companies, information-technology companies, cities, urban planners, etc., worked on vehicle-to-vehicle (V2V) and vehicle-to-infrastructure (V2I) communication protocols. The standards discussed here are technological solutions, which differ from the procedure, safety, material, or certification standards such as ISO, ANSI, or NIST. The organizations facilitating the creation of technological standards are standard- setting/development organizations (SSOs or SDOs). Most SSOs are open to anyone’s participation, with those who are interested in exploring, developing, and selling products involving future standards being the most-active participants. The Participating companies compete not only in getting their proposed technologies adopted by the standard, but also in filing applications for patenting their technical contributions. The patents covering the technologies that become part of a standard are the so-called standard-essential patents (SEPs).
Once included in a standard, an SEP gives its owner ability to exclude others from using the SEP technology without a license. This results in significant leverage for the SEP owner once the standard is widely adopted and the products universally consumed. To keep SEPs’ impact in check and encourage a standard’s adoption, SSOs mandate disclosing standard-essential patents (and patent applications) and the owner’s commitment to F/RAND. Technologies without such commitment are unlikely candidates for standards, because including them in the standard would create uncertainties, hurdles to speedy adoption, and increased costs.
SSOs used to be led by a few large companies, but a lot more participants of various sizes and from around the world are now active in SSOs. Similarly, many companies, universities, and research institutes, large and small, are actively asserting SEPs. Patent assertion entities, whose primary business is asserting patents, have been acquiring SEPs to ensure broad applicability. F/RAND commitments associated with SEPs are permanent—they transfer with change in patent owner and remain ever after the SEP owner’s departure from an SSO.
Because many SSOs do not detail what F/RAND commitments mean, it is not surprising that SEP owners and potential licensees have differing views on what F/RAND is. While many were able to negotiate SEP licenses without litigating F/RAND issues, many others escalated to litigations, mostly through an SEP owner’s suit for patent infringement. To put pressure on standard implementers, SEP owners frequently rely on injunctions to preclude market access and to put pressure on standard- implementers to take a license. But injunctions are becoming less effective, and court-adjudicated royalties are reflecting the balancing SEP owners’ interests with those of standard implementers.
For years, injunctions were essentially “automatic” upon on finding of patent infringement. But everything has changed after the Supreme Court raised the bar in 2006 and after many recent decisions dealing with injunctions based on SEPs. Following the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, a permanent injunction is no longer automatic, even upon finding of infringement. The availability of an injunction is evaluated under a four-factor test. The patent owner must prove that (1) it will suffer an irreparable injury; (2) remedies available at law are inadequate to compensate for that injury; (3) the balance of hardships between the parties favors the plaintiff; and (4) the public interest would not be disserved. Following eBay, the “irreparable injury” is no longer presumed from finding of patent infringement. As to preliminary injunctions, an “extraordinary” remedy rarely granted, the patent owner must further prove that its likelihood to succeed on the merits.
A F/RAND commitment further weakens an injunction case under the four-factor test. Because an SEP owner is committed to license its SEPs to any willing licensee on fair, reasonable, and nondiscriminatory terms, payment of royalties is adequate to compensate any injury caused by infringement. Further, not having an injunction unlikely causes any hardship on the SEP owner, because its patents are (or would be) widely licensed due to standard-essentiality and its F/RAND commitments. All these factors weigh heavily against granting an injunction. While the Federal Circuit saw “no reason to create . . . a separate rule or analytical framework for addressing injunctions for FRAND-committed patents”, it suggested that “patentee subject to FRAND commitments may have difficulty establishing irreparable harm.” (Apple v. Motorola, Fed. Cir. 2014). Similarly, investigations by the United States International Trade Commission (ITC) typically result in an exclusion order upon finding of patent infringement, validity, and domestic industry. However, in 2013, a U.S. trade representative vetoed an ITC exclusion order, citing “policy considerations” associated with the SEPs that Samsung asserted. The veto effectively stalled Samsung assertions of its SEPs at the ITC to stop Apple’s importation of its iPhones.
Preliminary and permanent injunctions are especially unlikely when a standard implementer acts reasonably. Courts have frowned upon situations where an SEP owner has raced to seek an injunction, but 1) does so without having attempted to negotiate with the standard implementer; 2) does so while the parties are still negotiating; 3) does so without having offered anything close to the SEP owner’s F/RAND commitments; 4) does so after simply refusing to license its SEPs; or 5) does so while conducting the negotiation with indications of bad faith. Examples of bad faith include insisting on bundling non-SEPs or other IPs, requiring a license back of non-SEPs, and licensing only some SEPs but not others. Insisting on a royalty computed using the sales prices of downstream products of a third party, rather than of components sold by a standard implementer may amount to a breach of F/RAND obligations. (Realtek v. LSI, N.D. Cal. 2013).
Injunction becomes further unlikely if the courts find misconducts by an SEP owner. Under the four- factor test of eBay, the SEP owner’s misconducts tend to negate irreparable injury, hardship on the patent owner, or even the public interest. Similarly, the more a standard implementer does to demonstrate good faith, diligence, and reasonableness, the less likely it would face preliminary or permanent injunctions.
While U.S. courts tend to hold SEP owners to their F/RAND commitments in a way that seem to slightly favor standard implementers, the law relating to SEPs are still developing. In Europe, the Court of Justice of the European Union (CJEU) provided a process for good-faith negotiation involving SEPs. (Huawei v. ZTE, CJEU 2015). According to the court, an SEP owner may not seek an injunction against a willing licensee who acts diligently. Before seeking any injunction, the SEP owner must notify the alleged infringer and make an offer for a license on F/RAND terms and royalty. Pursuing an injunction without doing so will constitute an abuse of dominant position by the SEP owner. In contrast, the United States has not set any specific process, and injunctive relief is rarely granted, particularly for SEPs. In other words, courts in different countries or states approached SEP suits with differing views, including differing balance of the interests of an SEP owner and a standard implementer. Therefore, one needs to consider closely how each court weighs these factors, because the circumstances barring injunctions in one place may still lead to an injunction in another place.
Despite the rarity of injunctions based on an SEP, a licensee who goes too far, such as by aggressively stalling any good-faith negotiation effort, may still risk injunctions. As an example, the Federal Circuit suggested that “an injunction may be justified where an infringer unilaterally refuses a FRAND royalty or unreasonably delays negotiations to the same effect.” (Apple v. Motorola, Fed. Cir. 2014). In the SEP dispute against Microsoft, Motorola, as an SEP owner, obtained an injunction in Germany. A U.S. district court, however, later precluded Motorola from enforcing its Germany-obtained injunction. and its jury awarded Microsoft $14.52 million in damages after finding that Motorola breached its F/RAND obligations. (Microsoft v. Motorola, W.D. Wash. 2013). The ninth circuit later affirmed the decision.
To SEP owners’ dismay, “reverse” injunctions are available to standard implementers to fight against overly-aggressive SEP owners. Increasingly, standard implementers seek reverse injunctions against SEP owners to counteract overly aggressive or utterly unreasonable tactics. The injunction is “reverse,” because it is not against an accused infringer selling infringing products, but against an SEP owner. It is also “reverse,” because it does not seek to enforce an SEP, but instead enjoins an SEP owner from enforcing the SEP in ways that violates the SEP owner’s contractual commitments.
Multiple reverse-injunction options may be available to a standard implementer depending on the wrong to be corrected or the specific concerns the implementer faces. U.S. district courts have issued injunctions to essentially undo the injunctions issued by a foreign court. While a U.S. court has no power over a foreign court, the U.S. court having jurisdiction over an SEP owner may enjoin it from enforcing an injunction it obtained. U.S. courts also have issued reverse injunctions to suspend parallel litigations in foreign courts, in part because a single court would resolve F/RAND issues without the need for duplicative, costly parallel suits. Similarly, a standard implementer may tailor its request for an injunction to compel the SEP owner’s license on F/RAND terms—a specific performance under the SEP owner’s agreement with the SSO. Relying on the SEP owner’s agreement with an SSO and as a third-party beneficiary of the agreement, a standard implementer may seek other reverse injunctions, thereby precluding the SEP owner from engaging in acts inconsistent with its own F/RAND commitments.
Unquestionably, courts around the world play critical roles in adjudicating F/RAND disputes. What is becoming even more critical is that courts not only developed frameworks to find adequate F/RAND rates, but also stepped outside their jurisdictional boundaries and proclaimed that they, despite being a court in one particular country, can and shall decide the adequate worldwide F/RAND rates affecting multiple countries. In other words, one court not only adjudicates the F/RAND rates affecting patents in one specific country, but also decides the F/RAND rates around the world, essentially playing the role of multiple courts. (TCL v. Ericsson, C.D. Cal. 2017; Unwired Planet v. Huawei, UK 2017; Conversant Wireless v. Huawei, UK 2018). Using several cases in the U.S. as examples, Table 1 illustrates examples of court-determined F/RAND royalties and products at issue. And Figures 1 and 2, as noted above, illustrate the significant, or sometimes drastic, differences between SEP owners’ F/RAND offers and the F/RAND rates courts determined as proper. Under F/RAND commitments, an SEP owner’s license terms, including its royalty rate, must be fair and reasonable (or simply reasonable in the case of RAND commitments). A “reasonable” royalty is also part of the U.S. patent law statute, setting the floor of the damages by stating that they should be “in no event less than a reasonable royalty” under 35 U.S.C. § 284. Because SEPs create the unique situation that every seller needs a license to compete in the relevant market, such as the market for smartphones, all of which operates the dominant 3G and 4G standards—the third and fourth generations of standards governing mobile phone communications. The SEPs essentiality create a patent-driven entry barrier for implementers, making a license to the SEPs not only preferable but essentially necessary. Because of the unique necessity for SEP licenses, courts share standard implementers’ concerns of patent “hold-up” and royalty stacking.
Hold-up refers to an SEP owner’s ability to hold up a standard implementer’s use of the patented technology and its sales of product using that technology. Hold-up is a much less significant problem for non-SEPs, because a licensee has an option of using other technical solutions. For SEPs, a licensee does not have the option. This is particularly true when a certain technology standard acquires a dominant position such that every company must implement the standard technology. The 3G (third-generation) and 4G (fourth-generation) standards for mobile communications and the Wi-Fi standard for wireless local- area-networking communications are good examples. Modern-day electronics, such as smartphones, tablets, and computers, and even TVs and cars, are using these dominant, if not effectively exclusive, standards. When a standard becomes a necessary feature of all products in the market segment, a company without an SEP license is left without any market access, and an SEP owner’s “hold-up” has enormous impacts and may result in competitive harm.
Royalty stacking, as another concern of standard implementers, drives many courts to adopt a top- down approach, a variation of it, or to closely weigh its effects in determining a F/RAND rate. Royalty stacking means that a standard implementer needs to pay multiple or numerous SEP owners, and the resulting total royalties, after stacking all together, may be a significant burden. A very high aggregated royalty significantly increases the cost of standard implementers, who would transfer the burden to consumers by increasing the price of standard-implementing products. A very high aggregated royalty also defeats the purpose of setting one unified standard in the first place. Such burden on suppliers, and ultimately on consumers, discourages production, reduces competition, and discourages consumption. It may also go as far as denying the viability or wide-usage of a standard.
Another reason that justifies the royalty-stacking concern is that companies tend to market the standard and sell the products first, and then negotiate licenses once the standards and products becomes widely accepted or dominant. Such “product-first-license-second” approach is often logical for both SEP owners and standard implementers, giving both sides abundant information to work with during license negotiation. Such approach also better informs the parties about a standard’s viability and importance, the prices acceptable to consumers, the total size of the market, the value added by the patented invention(s), the direction and the long-term sustainability of the market. While a reversed (license-first-product- second) approach may sometimes work, it presents a lot more uncertainties, and there may be unwilling participants on both sides—an unwilling licensor who does not want to undervalue its SEPs, and an unwilling licensee who does not want to overpay without any proof that the standard will be widely popular or quickly accepted.
Several court decisions rely primarily on the top-down approach, with some other decisions relying on it as a check to avoid unbearable burden on standard implementers. In TCL v. Ericsson in 2017, the U.S. District Court of the Central District of California adopted a top-down approach. A simplified top-down formula looks like this:
Under a top-down approach, a court first identifies the “top”—the aggregate royalty rate for all SEPs, presumably the ceiling of what an implementer would pay for all SEPs. A court may consider various factors in setting the top, including the SSO or SEP-owners’ expectation or declaration (if any), the profit margin of standard-implementing products, the value attributed to the standard, industry norms, etc.
Several cases involving telecommunication technologies set the top to be somewhere between 5% and 10%. In industries implementing telecommunication technologies, a 10% or lower “top” means each SEP owner holding a few or a dozen patents out of hundreds or thousands of SEPs would likely get a royalty rate far below 1%. As a result, a top-down approach significantly weighs down the value of each SEP in a patent-crowded standard.
A top-down approach likely benefits standard implementers more than SEP owners by keeping the aggregate royalty in check and by providing certainty. This is especially true if the royalty is computed based on the prices of the sub-part or module implementing the standard. In larger systems where there are other non-standard-related functions, such as TVs, cars, refrigerators, such approach further contains the royalty burden on the standard implementers.
After an aggregate royalty rate is determined, a court compares the number of patents (or patent families) an SEP owner has with the number, deriving a percentage ratio. Figures 3 to 5 illustrate examples of how the court compares the number a particular owner’s SEPs with the total number SEPs in TCL v. Ericsson (C.D. Cal. 2017), in which the Court computed those ratios based on the number of patent families, rather than the number of patents. Each ratio is multiplied with the aggregate royalty rate to result in a starting point of a F/RAND rate. The ratio, the resulting F/RAND rate, or both, may be adjusted based on one or more adjustment factors, such as based on value the SEPs at issue add, comparable licenses, strength or value of the other SEPs, and other Georgia-Pacific factors. In cases where a top-down approach is not adopted, courts frequently use it as a check to make sure that the F/RAND rate as determined does not become excessive.
Whether courts adopt a top-down approach or not, the resulting F/RAND rates from the major cases that have been decided generally hover way below 1%. The following is a chart illustrating the F/RAND rates in various cases.
Many SEP owners are disappointed with the rates resulting from these decisions and contend that these are highly biased in favor of standard implementers. In addition to a royalty rate below or way below 1% for a portfolio of SEPs, the 0.555 to 15 cents on a product selling for hundreds of dollars results in an effective royalty rate of 0.07%, also for a portfolio of SEPs. These numbers are much lower than many SEP owners’ public announcements of the rates they view as F/RAND rates or would like to get.
In addition to royalty rates, the proper royalty base has an even more significant impact where total royalties are based on product values rather than the number of units sold. A high royalty base in a high- volume market results in significant royalties. Two of the five cases illustrated above involved royalty rates based on the value of end products. Therefore, a license on a $200 to $1,000 smart phone would result in a lot more royalties than a license on a $1 to $30 integrated circuits (ICs) that implement most of
SEPs. The drastic difference drives SEP-owners to seek more system-based SEPs to license such SEPs to system suppliers rather than IC/component suppliers.
Case |
Royalty |
Products |
TCL v. Ericsson |
0.09% to 0.45% |
Mobile phones |
Ericsson v. D-Link |
15 cents per unit |
Laptops and routers |
Realtek v. LSI |
0.12% and 0.07% |
Wi-Fi ICs |
Microsoft v. Motorola |
0.555 to 19.5 cents per unit |
Windows and Xbox |
Unwired Planet v. Huawei |
0.016% to 0.064% |
Mobile phones and mobile-network equipment |
Table 1: Examples of Court-Determined F/RAND
Courts address the issue of royalty by examining smallest sellable unit (SSU) or smallest sellable patent-practicing unit (SSPPU) and apportioning the value of invention accordingly. Further apportionment down to smaller sub parts beyond a smallest sellable unit reflects an invention’s exact contribution and value. An apportionment beyond a smallest sellable unit also excludes the effects and values of other structures, processes, or operations that have little or nothing to do with what the inventor invented and added to pre-existing art. Not all courts who decided F/RAND issues involved apportionment disputes, and most of the cases listed in Table 1 involved completed systems rather than discrete components. However, as SEP owners continue to seek returns on investments and as standard implementers continue to ease royalty burdens, future F/RAND disputes will involve contested issues of smallest-sellable units and proper apportionment.
Aside from typical defenses to counter patent-infringement claims, more and more standard implementers are asserting breach-of-contract claims against SEP owners. Most standard implementers are not parties to a F/RAND-committing agreement with SEP owners, most of which are between SEP owners and an SSO or among the SSO participants. However, a standard implementer, as a third-party beneficiary of the agreement, has been able to enforce the F/RAND-committing agreement between an SEP owner and an SSO in most cases. Under such agreement, a standard implementer may assert breach- of-contract claims against an SEP owner who has committed to and breached its F/RAND obligations or other SSO rules or terms. However, an SEP-SSO agreement usually specifies its governing law as that of a particular country, state, or jurisdiction. For example, the European Telecommunications Standards Institute (ETSI), the driving force behind generations of mobile-phone communication standards, including 2G, 3G, 4G, and 5G, states that its FRAND policy is governed by French law. Courts in another country, when interpreting the ETSI’s FRAND policy, must apply French law and have done so in past decisions.
Asserting a breach-of-contract claim not only puts a standard implementer on offense, but also provides relief available under the governing contract law. A standard implementer, therefore, may seek damages resulting from an SEP owner’s misconduct, recover attorneys’ fees, obtain injunctions, and compel the SEP owner’s license or compliance. For example, in Microsoft v. Motorola (W.D. Wash. 2013), Microsoft sued Motorola, the SEP owner, for breaching its F/RAND commitments associated with Motorola’s SEPs. The jury awarded Microsoft $14.5 million in damages, including $3.5 million in attorneys’ fees and $11 million for the costs Microsoft incurred. The costs came from Microsoft’s relocating its European operations from Germany to the Netherlands in response to an injunction Motorola obtained in Germany.
In addition to attorneys’ fees and business costs, a standard implementer can include other damages caused by an SEP-owner’s misconduct, including loss of sales and business opportunities. However, just like all other breach of contract claims, the standard implementer must prove causation and actual damages and would not be able to recover what may be remote or speculative. The enforcement process can also be time- and resource-consuming with some level of uncertainty.
From a negotiation standpoint, a breach-of-contract claim also puts the standard implementer on offense, giving it significant leverage in negotiating with an SEP owner to obtain F/RAND terms. A quick resolution with certainty avoids wasted time and resources and, frequently, even more significant loss of business opportunities while SEP licenses necessary for product sales remain unavailable. While several courts have awarded damages resulting from SEP owners’ breach, others have found no substantial breach and awarded little or no damages. A no-recovery outcome is still not a complete loss, especially if a standard implementer obtains F/RAND terms that translates to long-term savings. A standard implementer needs to weigh its options and use these claims effectively in both negotiation and litigation to achieve the outcome it desires.
Antitrust claims or investigations against SEP owners, especially those initiated by government agency, are also becoming common. The hurdles for private enforcement of antitrust laws can be high. In contrast, enforcement by government agencies imposes a much higher pressure on the SEP owners due to potential fines, negative publicity, and impacts on past licenses and ongoing negotiations. A good example is the pending FTC complaint investigation against Qualcomm, a holder of many telecommunication SEPs, and the proceedings in Europe, Taiwan, China, and Korea that resulted in fines ranging from $700 million to over $1 billion, with some decisions being appealed.
SSOs are also tightening up their rules to address hold-up, injunction, and F/RAND issues. The Institute of Electrical and Electronics Engineers (IEEE)’s 2015 patent policy requests SEP owners to license to anyone and everyone, rather than excluding component suppliers in favor of end-product suppliers. The IEEE 2015 policy also precludes SEP owners from seeking injunctions against willing licensees. The IEEE 2015 policy further defines “reasonable royalty” as based on (1) “smallest saleable compliant implementation,” (2) the value that an SEP contributes to that implementation relative to the total value of all SEPs, and (3) prior licenses. Other SSOs also developed or imposed new policies to provide additional guidance to SEPs and standard implementers. Therefore, depending on the SEP at issue and the relevant SSO rules, a standard implementer may have additional causes of action.
Standard-implementing products are everywhere, making to SEP licenses necessary and disputes unavoidable. Several court decisions have developed similar frameworks for resolving SEPs disputes and determining license terms, and standard-setting organizations have set structured rules. All these provided standard implementers with tools to manage SEP-related disputes. SEP owners, while mostly critical with increasingly diminishing returns and rules on enforcing SEPs, now must enforce standard-essential patents and negotiate licenses with these constraints. Because standard-essential patents are subject to fair, reasonable, and nondiscriminatory (F/RAND) commitments, understanding what F/RAND means enables companies to pursue SEP licenses and sell SEP-implementing products with certainty. The new “norms” include the low likelihood of injunctions against product sales, the availability of “reverse” injunctions to deter non-F/RAND-compliant behaviors, and the possibilities for asserting breach-of- contract claims against SEP owners. Patent owners, however, would continue think outside the box, patent outside the standards, and leverage from SEPs, non-SEPs, and other IPs. Uncertainties remain with the pending appeals for several SEP-related actions. However, the commonalities which have emerged from recent decisions have made boundaries clearer than before. Having these rules of the game enable both SEP owners and standard implementers to act consistently with F/RAND, and to litigate fairly, negotiate reasonably, and deal non-discriminatorily.
Originally printed in AIPPI Japan in December 2018. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm’s clients.
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