The Real FRAND Scam Part 1

Last month, Unified Patents, also known as a PTAB reverse troll, launched its new service called Unified Consulting. Citing from its website, Unified Consulting “can meet the needs of their companies through IP consulting and data service and support.[1] U[nified] C[onsulting] provides innovative solutions to clients […].” Unfortunately, the solutions Unified advertises are to “problems” of Unified’s own making. To drum up its reverse trolling business, Unified misdirects its readers with an article titled “FRAND SCAM” that focuses on a vacated court case on fair, reasonable, and non-discriminatory (FRAND) licensing, without telling its readers that this case has since been by the Federal Circuit, that later court cases have contradicted its reasoning and analysis, and that industry analysts have heavily criticized it for some time. In this manner, Unified describes “problems” that do not actually exist to sell a solution that won’t actually work.

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The Real FRAND Scam Part 3

Previously we discussed a Unified Patents’ article, the “FRAND SCAM” fails to address many key points.  But worse than these sins of omission, the article goes so far as to make some outlandish misrepresentations about the overturned TCL decision.  For example, Unified incorrectly posits that the “court […] concluded […] that Ericsson had violated its FRAND obligations.”  However, the TCL decision actually determined that Ericsson had met its FRAND obligations with respect to its course of conduct. The decision states: “Ericsson negotiated in good faith and its conduct during the course of negotiations did not violate its FRAND obligation.” (p3) The article also incorrectly claims that Ericsson agreed with TCL on the number of patents that were actually essential. However, as the TCL decision makes clear, “Ericsson made numerous challenges to the process that produced these numbers […]. Ericsson challenged the results of this process…” (p30) Ericsson challenged these numbers because TCL’s “experts” spent only 20 minutes per patent in their analysis, producing a vast over-counting of industry’s essential patents to Ericsson’s detriment.  Indeed, this was the exact criticism that the UK court leveled on this type of exercise. Tellingly, a later study found the results of the 20-minute-per-patent review to be comparable to random guesswork.

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Identifying Trade Secrets With Reasonable Particularity

As we have written previously, during the course of a United States litigation — whether, under the new, federal Defend Trade Secrets Act (DTSA) or the older state-adopted Uniform Trade Secrets Act (UTSA) — plaintiffs must typically provide a description of the trade secrets allegedly stolen. What constitutes an adequate identification of the stolen or misappropriated trade secrets depends on the nature of the trade secrets, the facts of the case, and the relevant jurisdiction.

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New IAM publication (re-posted with corrected links)

I am very pleased to report that IAM has published a short post by Eric Stasik and myself looking at Nokia’s published licensing revenue in light of the current SEP licensing ecosystem.

The article can be found on IAM’s website here: https://www.iam-media.com/frandseps/nokia-licensing-income

Apologies for the original link – as it seems to be broken.  Try here in the interim.

 

New IAM publication

I am very pleased to report that IAM has published a short post by Eric Stasik and myself looking at Nokia’s published licensing revenue in light of the current SEP licensing ecosystem.

The article is available here https://www.davidlcohenpc.com/wp-content/uploads/2020/03/nokia.jpg

IPlytics’ Patent-Counting Fallacy

Just tell me how many, they’re all the same

There is no doubt that the number of patents declared as potentially essential to technical standards is not an indication of essentiality; its only purpose is to make those declared patents accessible on FRAND terms should they ever become essential. Tim Pohlman, founder of IPlytics a commercial technology consultancy, participated in an empirical study and report of essential patents commissioned by the European Commission (Tender No ENTR/09/015 (OJEU S136 of 18/07/2009)).  In December 2016 his consultancy, released a 62 page report on SEPs commissioned by the EC.  The report was the result an heroic effort to sort through and normalize patent declaration data for all widely adopted standards (See Fig. 1).  This work was (and is) important and should not be under-valued. It has long been recognized (e.g., n.10), that patent declaration information “can be hard to find, [] the links are often messy, and standards often see improved, updated releases.” On the back of the data the IPlytics team has been collecting about patents declared as potentially essential and 3GPP documents, they have been issuing privately-commissioned reports discussing their data as well as their analysis of the data in greater detail. Their recent reports  on 5G have been widely discussed in the media and at conferences.

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a confidentiality agreement legal document

The Value of a Confidentiality Agreement…Continued

In my prior article addressing confidentiality agreements, I reviewed how to identify a company’s intangible assets and how to protect them with an NDA. This article will continue the discussion of preparing an NDA.

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Back to Balance

The Balance of F/RAND

The remedies a court can impose on behalf of a standard-essential patent owner whose Essential Patents are infringed, and even the remedies an Essential Patents owner requests became an especially contentious question between 2013-2015.  During that time window, it seemed like courts and regulators were trying to severely limit the remedies available for Essential Patents infringement, and facilitate strategic infringement, also known as “efficient infringement”. Thankfully, a sense of balance seems to be returning to the policy landscape surrounding Essential Patents.  Proof of this return to balance can be seen in the approach to Essential Patent remedies of the December U.S. executive branch statement on this topic.

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Anti-Patent Leadership Taking IEEE-SA on The Road to Knowhere? Part II

In my prior piece, I noted IEEE General Director Karachalios’ anti-patent positions and protectionist associations that one might find troubling in a 25 year EPO employee or the Managing Director of what is billed as the “world’s largest technical professional organization for the advancement of technology.” One would have assumed that love of technological growth and internationalism were a key requirement for such a position.  Yet a review of Karachalios’ positions seem more that of an ideologue than anything else. Indeed, like many an ideologue, he shows disdain for pragmatism and an almost childish approach to established norms. How else to explain the series of creative self-published pieces justifying the IEEE-SA IP policy rule provisions.

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Reasonable Steps and Trade Secret Protection

While companies are starting to better appreciate the role trade secrets can play in underpinning their intellectual capital, proactive trade secret management is still a very much neglected activity. This neglect can ultimately lead to the loss of valuable trade secrets and the loss of millions of dollars of value and legal fees. The widespread failure of many companies to take reasonable steps to protect their information should give managers and their company directors much pause. Fortunately, the law is starting to provide a clearer picture of what needs to be done, and there are many providers well versed in both best practices and productivity tools that will enhance a company’s trade secret protections. Read more