TCL v. Ericsson: top-down royalty calculations and jury verdicts in US FRAND cases

This book chapter summarizes TCL and Ericsson's long-running dispute over the value of a FRAND license to Ericsson's portfolio of mobile broadband SEPs and discusses the importance of the parties' US litigation, with a particular focus on Judge James Selna's valuation of Ericsson's portfolio using a "top-down" royalty calculation methodology (No. 8:14-cv-00341, 2017 WL 6611635 (C.D. Cal. Dec. 21, 2017), amended and superseded by 2018 WL 4488286 (C.D. Cal. Sept. 14, 2018)) and the Federal Circuit's subsequent reversal of that decision on the grounds that it should have been made by a jury instead (943 F.3d 1360 (Fed. Cir. 2019)). The chapter concludes that Judge Selna's decision continues to be influential despite its reversal on appeal and suggests that a shift from detailed judicial decisions (like Selna's) to jury verdicts (as required by the Federal Circuit) will intensify international forum selection disputes, pre-trial evidentiary challenges to expert testimony, and the notoriously opaque nature of the SEP licensing market.