You gotta love it.
Except perhaps when a party refuses to negotiate in
good
faith? I didn't read the footnotes. Maybe it is in there.
I
double-checked. Footnote 3 says:
3
Commissioner Rosch concurs
in the submission of this brief.
He is of the view
that the issuance of
injunctive relief is inappropriate
where the patent holder has
made a FRAND
commitment for a standard essential patent,
even if the patentee
contends that
it has met its FRAND obligation. In his view,
a FRAND pledge
appears to be, by
its very nature, a commitment to license;
if so, seeking injunctive
relief
would be inconsistent with that commitment.
Commissioner Rosch thus
submits
that if a court concludes that a party, or its
predecessor in interest, made
a
FRAND commitment with respect to a SEP, an injunction should
be denied
for
that patent. In his view, the only exception to this is when
the licensee
refuses to
comply with the decision of a federal court or some other
neutral
arbitrator
defining the FRAND terms.
And on page 5, they
oh-so-carefully dance around the facts:
After a RAND commitment
is made, the patentee
and
the implementer will typically negotiate a royalty
or, in
the event they are unable to
agree, may seek a judicial determination
of a reasonable
rate. However, a royalty
negotiation that occurs under the
threat of an injunction
may be heavily weighted
in favor of the patentee in a
way that is in tension with
the RAND commitment.
And again at
Footnote 8:
8 -
The district court recognized that an
injunction may be
warranted under eBay if
“Apple refuses to pay a royalty that
meets the FRAND
requirement.” Remedy Op.
at 18. More generally, in
circumstances where an infringer
is unable or unwilling
to pay an ongoing
royalty, the harm to the patentee
presumably cannot be
compensated with
damages. See New York City v. Pine, 185
U.S. 93, 108 (1902)
(court may order
that injunction will issue if the defendant
fails to pay damages).
However, the
district court apparently determined that Apple
is not an unwilling
licensee
that waived its right to a FRAND license. Remedy
Op. at
20.
Facts are so inconvenient.
---
Userfriendly on
WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ? [ Reply to This | Parent | # ]
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