Comments on the Sedona Conference Working Group on Patent Damages and Remedies

15 May 2020. We respectfully submit this letter in response to the call for public comment on the November
2019 Public Comment Version of The Sedona Conference Framework for Analysis of StandardEssential Patent (SEP) and Fair, Reasonable, and Non-Discriminatory (FRAND) Licensing and Royalty Issues (Stage Two) (the “Framework”). The Fair Standards Alliance (FSA) represents 47 global companies, large and small, and advocates fairer licensing of standardized technology, including in the development and rollout of the internet of things. Annually, the aggregate turnover of FSA members is more than USD 2.2 trillion, and in aggregate our members spend more than USD 152 billion on R&D and innovation. Alliance members have more than 500,000 patents, including SEPs, that are either granted or pending. We appreciate the work of The Sedona Conference and believe it serves a valuable and important purpose for litigants and courts alike.

The Framework, as written, clearly reflects substantial effort to achieve the “general approach” described in the Foreword: “to present the various positions that SEP licensors and that SEP licensees may argue for key disputed issues, . . . with a similar level of detail provided to each position.” Framework at iv. That approach undoubtedly has its merits in certain circumstances. However, as the Preface to the Framework acknowledges, the approach differs from Sedona’s traditional consensus approach: “The numerous ‘some may argue’ positions presented throughout this Framework may not represent the consensus of the group described, and implicitly do not represent the consensus of the full drafting team or all of WG9.” Framework at ii-iii.

 

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