TCL v Ericsson: US Court Determines Top-Down FRAND Royalty Rate for SEPs and Insists on Similar Percentage-of-Sales-Price Payments for High and Low Priced Devices

摘要

In TCL v Ericsson a district court issued a second major US FRAND judgment endorsing the "top-down" methodology and rejecting the "bottom-up " methodology for determining SEP royalties. The court also required substantially equal percentage-of-sales-price royalty payments for large and small competitors, and for upmarket and downmarket sellers alike, to satisfy FRAND's nondiscrimination requirement. The court's top-down approach may neutralise a trend among owners of large SEP portfolios to split up and diffuse their SEPs among many "privateers " in order to inflate total royalty payments.