Methodologies for calculating FRAND damages: an economic and comparative analysis of the case law from China, the European Union, India, and the United States

In the last several years, courts around the world have ruled on appropriate methodologies for calculating either a reasonable royalty rate or reasonable royalty damages on standard-essential patents (SEPs) upon which a patent holder has made an assurance to license on fair, reasonable and non-discriminatory (FRAND) terms. Included in these decisions are determinations about patent holdup, licensee holdout, the seeking of injunctive relief, royalty stacking, the incremental value rule, reliance on comparable licenses, the appropriate revenue base for royalty calculations, and the use of worldwide portfolio licensing. This article, written with Koren W. Wong-Ervin,  provides an economic and comparative analysis of the case law to date. While this article focuses on court decisions, discussions of the various agency decisions from around the world are also included throughout.