https://www.linkedin.com/feed/update/urn:li:activity:7300747838706065409

We've listened to parts of the recordings of the first two days (of five) of the Optis v. Apple hashtag#FRAND appeal in the UK, with plaintiff-appellant's counsel having laid out the case. To the extent one can say so at this stage (with three more days to go), it appears that an adjustment will be made, but the extent remains to be seen.

As our pre-hearing article said, there are various issues with the lower court's ruling, and some arguments (such as ignoring exposure when parties agreed on cross-licenses) appear strong enough that the sheer number of issues raised doesn't discredit the appeal at all.

One of Optis's main themes is hold-out. They point to Apple-internal documents that already became known as a result of the Qualcomm dispute in the 2010s and talk about how to bring SEP royalties down. Now, different people will reach different conclusions as to whether what Apple was doing was simply legit, or whether it was hold-out. In the end it all depends on whether one believes there is overcompensation, fair compensation, or undercompensation of SEP holders. That fundamental quesiton goes too far for a LinkedIn post.

The UK judges definitely don't like the fact that Apple for a long time avoided the conclusion of portfolio license agreements by arguing that SEP licenses should be concluded one patent at a time. That type of piecemeal resolution runs counter to the UK's Unwired philosophy, and even Lord Justice Arnold (who is exceedingly implementer-friendly in other respects) does not condone it.

There was an indication -- by LJ Arnold, interestingly -- that the court *may* (or may not, as he clarified) regard all of Apple's comparable license agreements (deals with third parties) as irrelevant, possibly for the simple reason (regardless of whether those other royalty rates were depressed by hold-out) that they cover different patent portfolios. Apples to oranges, basically. In that case, only deals concluded between Optis and other licensees would be deemed eligible for comparison. And it would effectively do away with any top-down valuation methodology. Theoretically one can still look at top-down numbers, but they would become meaningless if SEPs are not considered equal (and they indeed aren't).