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Methodologies for Calculating FRAND Damages (Parts 1, 2 and 3)

Koren Wong-Ervin and Anne Layne-Farrar, Law 360, October 2014

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In this three-part series, we focus on these issues of FRAND royalty rates and damages in the context of patent infringement or contract litigation within the United States. We review the case law to date and discuss its implications. In this first installment, we focus on two of the most prominent debates over FRAND: the potential for market power abuses that lead to hold-up and royalty stacking. In part 2, we turn to appropriate benchmarks and methods for determining FRAND terms. Finally, in part 3, we analyze an issue that permeates the spectrum of FRAND issues: the appropriate base for royalty calculations.

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