On  August 19, 2013, U.S. District Court Judge James L. Robart of the Western District of Washington issued an Order denying Microsoft’s motion for summary judgment that Motorola breached its contract with Microsoft by failing to license its standard-essential patents (“SEPs”) on fair, reasonable and nondiscriminatory (“FRAND”) terms.  Microsoft contends that Motorola’s offer letters, the basis for Microsoft’s initiating the breach of contract action, sought such an exorbitant royalty rate compared to the FRAND rate and range set by the Court that no reasonable juror could conclude that Motorola had made a commercially reasonable offer.  Microsoft also contends that Motorola’s “demands” in the offer letters combined with Motorola seeking injunctive relief in the U.S. District Courts, the ITC, and Germany frustrated the purpose of the FRAND commitment.  The Court found that whether Motorola’s offer letters were commercially reasonable requires more than “a simple comparison between the royalty rate included in the offer letters and the determined [F]RAND rate” and outlined multiple genuine issues of material fact to be resolved by a jury.  The Court further distinguished this case from U.S. District Court Judge Ronald M. Whyte’s holding in Realtek Semiconductor Corp. v. LSI Corp., 2013 WL 2181717 (N.D. Cal. May 20, 2013) that failing to offer a license, on FRAND terms or otherwise, before seeking an exclusion order in ITC Investigation No. 337-TA-837, was a breach of FRAND commitment.