In an 89 page Memorandum Opinion issued on September 27, 2013 in Innovatio IP Ventures Patent Litigation, MDL 2303 (N.D. Ill.), Judge James Holderman determined, after a September 9-12, 17-20, 2013 bench trial limited to the issue of finding a FRAND rate to be paid to Innovatio for licensing Innovatio’s portfolio of nineteen 802.11 standard-essential patents (“SEPs”), that a FRAND rate is “9.56 cents for each Wi-Fi chip used or sold by the Manufacturers in the United States, subject to. . . a finding of infringement.” Judge Holderman noted that “only one other court has previously undertaken a judicial determination” of a FRAND rate for SEPs, citing to Judge James Robart’s decision in Microsoft v. Motorola, 2013 WL 2111217 (W.D. Wash. Apr. 25, 2013). He also noted that the Court’s 9.56 cents FRAND rate “is comfortably within Judge Robart’s reasonable range for a [F]RAND rate. . . between 0.8. . . and 19.5 cents per unit” and is “three times Judge Robart’s [F]RAND rate of 3.471 cents per unit. . . a reasonable difference between the two royalties to account for the greater importance of Innovatio’s patents to the 802.11 standard.” He further noted that the 9.56 cents FRAND rate “is close” to the 15 cents per unit FRAND rate based on a Jury finding that 3 of Ericsson’s 802.11 SEPs “were infringed” in Ericsson v. D-Link, 2013 WL 4046225 (E.D. Tex. Aug. 6, 2013).
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