With standard-essential-patent (SEP) damages discussions frequently focused on how to calculate a RAND rate, one can sometimes forget that not all SEPs are subject to [F]RAND obligations, which raises the issue whether and to what extent a reasonable royalty rate would be different between RAND and non-RAND encumbered patents. Last week, N.D. Cal. Judge Lucy

As the Senate continues to weigh patent reform measures focused on improving preliminary disclosures in patent litigation, courts continue to distinguish between sufficient and insufficient disclosures under their own patent local rules. According to a recent ruling from the Northern District of California, a generalized claim that any products practicing a technical standard infringe an

While much of the focus on standard-essential patent litigation issues has been focused on Microsoft-Motorola, Apple-Samsung, and the InterDigital cases, these are far from the only cases dealing with SEP issues.  District courts and the ITC continue to develop case law on SEP and RAND-related issues.

In an order issued yesterday in Realtek Semiconductor v. LSI (No. 12-cv-03451, N.D. Cal.), Judge Ronald Whyte of the Northern District of California issued a preliminary injunction that purports to prevent LSI from enforcing an ITC exclusion order until LSI has complied with its IEEE-related RAND obligations.  According to the order [LINK], this means that LSI must wait to enforce any exclusion order until: (1) the court has determined an appropriate RAND rate for LSI’s 802.11-essential patents, (2) LSI offers a license to Realtek at that rate; and (3) Realtek refuses to enter into a license at the judicially-determined RAND rate (which, as the court states, “Realtek indicates it will not do.).

With the ITC’s decision in the 337-TA-794 investigation (on the propriety of exclusion orders for FRAND-pledged essential patents) involving Samsung and Apple due by the end of the month, this is certainly an interesting development.  But given the way the ITC operates, we’re not so sure that the court’s order is going to have the desired effect.  Let’s take a look at Judge Whyte’s order, shall we?


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