On December 21, 2017, Judge James V. Selna of the U.S. District Court for the Central District of California ruled in favor of Compass Lexecon’s client, TCL Corporation, in a patent infringement suit involving the setting of Fair, Reasonable and Non-Discriminatory (FRAND) rates for a portfolio of wireless patents. Compass Lexecon Senior Consultant Professor Janusz Ordover testified on behalf of TCL at trial on the economic interpretation of FRAND, particularly with respect to non-discrimination. Judge Selna found that similarly situated firms should be able to receive the same rates, and, in particular, found that all “reasonably well-established” international firms were similar to one another. He also rejected claims that firms like Apple were not similarly situated to firms like TCL, finding that “the prohibition on discrimination would mean very little” if that were the case.
Judge Selna thus found that the patent holder, Ericsson, did not offer TCL the portfolio on fair, reasonable and non-discriminatory terms. He determined that the total FRAND payment was $16.5 million and not $100 million demanded by Ericsson.
At the trial, TCL was represented by counsel from Sheppard, Mullin, Richter & Hampton LLP, including Stephen S. Korniczky, Martin Bader, Matthew Holder and Ryan Cunningham. Professor Ordover was supported by a team in Compass Lexecon’s Chicago and Washington, DC offices led by Allan Shampine and Theresa Sullivan.