LAIPLA Spring Meeting Las Vegas, June 8, 2013 Jonathan Kagan Irell & Manella LLP 1800 Avenue of the Stars Los Angeles, CA 90067

Background Standard-setting organizations (“SSOs”) establish standards to ensure interoperability. Owners of standard-essential patents (“SEPs”) agree to license patented technology on FRAND terms in exchange for having their technology incorporated into the standard.

Key FRAND Questions (1) – Is Injunctive Relief Available? (2) – When Is FRAND Calculated? (3) – What Is a FRAND Rate?

Injunctive Relief for SEPs Should injunctive relief be available for SEPs? Availability of exclusion orders in the ITC for SEPs

Key Recent Developments Apple v. Motorola – Denial of injunctive relief on SEPs by Judge Posner Realtek v. LSI – granting injunction prohibiting LSI from enforcing any ITC exclusion order on SEPs ITC Final Determination in Inv. 794 – granting limited exclusion order on SEPs - June 4, 2013 First time Commission has granted exclusion order on an SEP (ALJs have previously held exclusion order is available remedy for SEPs) One Commissioner dissented on public interest grounds

When Is FRAND Calculated? Before Breach Microsoft v. Motorola After Breach Realtek v. LSI Corp.

How to Calculate FRAND (per Judge Robart) Start with Georgia-Pacific Factors Modify for FRAND Microsoft Corp., 2013 U.S. Dist. LEXIS 60233, at *54-65.