Mossoff on Federal Circuit Ruling on Royalty Rates for SEPs

Professor Adam Mossoff comments on a decision by the U.S. Court of Appeals for the Federal Circuit in recent Legal Newsline and MLex articles. In Ericsson, Inc. v. D-Link Systems, Inc., the Federal Circuit addressed the issue of determining royalty rates in a case involving infringement of standard essential patents.

“One of the most important aspects of the opinion is the court’s conclusion that purely speculative assertions of ‘patent holdup’ and ‘royalty stacking’ should be excluded by trial courts. This is important, because such assertions to date have been made entirely on the basis of conjecture and without any actual statistically verified evidence, either in actual court cases or more generally,” Mossoff said in Legal Newsline.

Discussing patent holdup and royalty stacking in MLex, Mossoff reiterated, “There is no evidence there has been a market failure here. The nice thing about the Ericsson decision is its insistence that yes, you can conjecture that as a matter of theory, but what you have to have is actual evidence.”

Federal Circuit issues ruling in case over standard essential patents, royalty rates, Legal Newsline, December 9, 2014. By Jessica M. Karmasek.

Comment: Federal Circuit offers much-needed guidance on calculating royalties for standard-essential patents, MLex, December 5, 2014. By Mike Swift & Leah Nylen.