InterDigital v. Arima Anne Layne-Farrar Demonstratives December 9, 2013

Summary of Opinions Highly unusual to argue that a signed contract is not FRAND Mr. Murtha’s analyses of licensing agreements are incorrect −Licenses much earlier/later are far less relevant −No “similarly-situated” analysis, math and fact errors Mr. Murtha’s “Most favored licensee” (or “MFL”) clause opinions are incorrect −Lack of MFL not a FRAND violation −FRAND does not works like an MFL clause

ETSI Intellectual Property Rights Policy § 4.1Subject to Clause 4.2 below, each MEMBER shall use its reasonable endeavours, in particular during the development of a STANDARD or TECHNICAL SPECIFICATION where it participates, to inform ETSI of ESSENTIAL IPRs in a timely fashion. In particular, a MEMBER submitting a technical proposal for a STANDARD or TECHNICAL SPECIFICATION shall, on a bona fide basis, draw the attention of ETSI to any of that MEMBER’s IPR which might be ESSENTIAL if that proposal is adopted. (emphasis added) Ex. 346, p. 34

ETSI Intellectual Property Rights Policy Ex. 346, p. 39 § 15(6)“ESSENTIAL” as applied to IPR means that it is not possible on technical (but not commercial) grounds, taking into account normal technical practice and the state of the art generally available at the time of standardization, to make, sell, lease, otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a STANDARD without infringing that IPR. For the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL.

The PLA Was Fair And Reasonable at the Time It Was Negotiated and Signed PLA royalty rates on the low end of industry 0.5 to 4.0 % range Arima acknowledged royalty and compensation are “reasonable” in the PLA Arima’s Mr. Hung said the PLA included a “fair rate” PLA is identical / similar to contemporaneous IDG license agreements

§ 3.8Sales to InterDigital group Licensees. Unless otherwise agreed to in writing by InterDigital Group, Licensee shall be required to pay royalties to InterDigital Group on Sales of Licensed Products and Limited Market GSM Terminal Units to any third party regardless of whether such third party is an lnterDigital Group licensee. Licensee may request that Licensee not be required to pay certain royalties to InterDigital Group on Sales of Licensed Products and/or Limited Market GSM Terminal Units to a specific third party that may be an InterDigital Group licensee. Within 15 days of such a written request, or upon InterDigital Group’s own initiative, InterDigital Group may, in its sole discretion, designate that Licensee not be required to pay royalties on Sales of Licensed Product and/or Limited Market GSM Terminal Units by Licensee to such specific third party, including the types of Licensed Terminal Units for which no royalty payment is required, and for how long. In the event InterDigital Group grants Licensee the right to make such Sales without paying royalties hereunder, such Sales by Licensee or its Affiliates (and the Licensed Products and/or Limited Market GSM Terminal Units being Sold) to such third party without royalty payment shall not be licensed hereunder and Licensee and its Affiliates enjoy a personal immunity from suit for infringement of the Licensed Patents as regard such Sales as so specified by InterDigital Group. IDG and Arima Patent License Agreement Ex. 19, pg. 5

Non-Discrimination Analysis Offers to similarly-situated potential licensees should be similar ND analysis must consider whether licensees are similarly situated Comparison of terms must be done as a whole Differences among concluded agreements do not mean discrimination

1996 Samsung Ex. 436 Timeline of Agreements Relied on by Mr. Murtha 2003 HTC Exs. 430; Quanta Ex Nokia Ex LG Ex /05 IDG and Arima enter into PLA 2006 Inventec Ex Nokia Exs. 410; Inventec Amendment Ex Pegatron Ex Samsung Ex Asustek Ex Apple Ex Acer Ex Quanta Amendmen t Ex Acer Amendment Ex //////// 2002 SEMC Ex. 421

Timeline of Agreements Relied on by Mr. Murtha 2003 HTC Exs. 430; Quanta Ex /05 IDG and Arima enter into PLA 2006 Inventec Ex Inventec Amendment Ex Pegatron Ex Asustek Ex Acer Ex Quanta Amendmen t Ex Acer Amendment Ex ///// 2002 SEMC Ex. 421

Comparison of Arima and Quanta PLAs Provision Arima (Ex. 19) Quanta (Ex. 409) Effective Date1/1/2005 Royalty Rate for Licensed Terminal Units1.65% Royalty Rate Cap for Licensed Terminal Units$3.00 Non-Assert Royalty RateLimited Market GSM Terminal Units: 1.10% Limited Market GSM Terminal Units: 1.00% Limited Manufacture GSM Terminal Units: 1.10% Definition of Products Covered Subject to 1.10% Royalty Rate “Limited Market GSM Terminal Units” means Terminal Units compliant with GSM (but no other Covered Standard), which units are manufactured in China or Taiwan. “Limited Manufacture GSM Terminal Units” means Terminal Units compliant with GSM (but no other Covered Standard), which units are manufactured solely within China or Taiwan. Limitations on License Grant Section 2.2 (does not allow sublicensing; excludes component sales except as incorporated into products) Section 2.2 (Same as Arima) Cross License GrantSection 2.3Section 2.3 (Same as Arima) Capture PeriodEffective Date (1/1/2005) + 3 Years Term Terminates upon last-to-expire of the Licensed Patents Prepayment Benefit Royalty Credit equal to 125% of optional prepayment Discount of 12%/year Reporting ObligationsSection 7.3Section 7.3 (Same as Arima) Ex. 19 vs. Ex. 409

Comparison of Arima and Inventec PLAs Provision Arima (Ex. 19) Inventec (Ex. 408) Effective Date1/1/20059/1/2006 Basic Royalty Rate for Licensed Terminal Units 1.65% Royalty Rate for Certain Narrowly- Defined Categories of Licensed Terminal Units N/A1.35% Non-Assert Royalty Rate1.10%1.00% Prepayment Benefit Royalty Credit equal to 125% of optional prepayment Royalty Credit equal to 130% of optional prepayment Limitations on License Grant Section 2.2 (does not allow sublicensing; excludes component sales except as incorporated into products) Section 2.2 (Same as Arima) Cross License GrantSection 2.3Section 2.5 (Same as Arima) Reporting ObligationsSection 7.3Section 6.3 (Same as Arima) Ex. 19 vs. Ex. 408

Comparison of Arima and HTC PLAs Provision Arima (Ex. 19) HTC (Exs. 430/432) Effective Date1/1/200512/31/2003 Relevant Product Definitions “Licensed Terminal Units” means Terminal Units designed to operate substantially in accordance with one or more Licensed Standards but excluding Limited Market GSM Terminal Units. “Covered Terminal Units” means Terminal Units designed to operate in accordance with one or more Covered Standards. Covered Terminal Units shall exclude devices that operate only on 802.XX standards, and do not operate on any Covered Standard. Royalty Rate for Covered/Licensed Terminal Units 1.65%1.66% (of Deemed Price) Royalty Rate Cap for Covered/Licensed Terminal Units $3.00$4.40 Limitations on License Grant Section 2.2 (does not allow sublicensing; excludes component sales except as incorporated into products) Section 2.2 (Same as Arima) Cross License GrantSection 2.3Section 2.3 (Same as Arima) Prepayment Benefit Royalty Credit equal to 125% of optional prepayment Discount of 12%/year Capture PeriodEffective Date (1/1/2005) + 3 YearsEffective Date (12/31/2003) + 5 Years Term Terminates upon last-to-expire of the Licensed Patents Reporting ObligationsSection 7.3Section 7.3 (Similar to Arima) Ex. 19 vs. Exs. 430/432

Ex. 19 vs. Ex. 427 Comparison of Arima and Acer PLAs Provision Arima (Ex. 19) Acer (Ex. 427) Effective Date1/1/20051/1/2011 Royalty Rates Licensed Terminal Units: 1.65% of actual Net Selling Price Limited Market GSM Terminal Units: 1.10% of actual Net Selling Price 2G Licensee Terminal Units: 1.00% of Deemed Price 3G Licensee Terminal Units: 1.50% of Deemed Price 4G Only Licensee Terminal Units: 1.50% of Deemed Price 4G Multi-mode Licensee Terminal Units: 2.00% of Deemed Price Definition“Net Selling Price”“Deemed Price” Cross License GrantSection 2.3Section 2.3 (Same as Arima)

SEMC Decreasing Royalty Rates Ex. 421 # of Covered Terminal Units Sold Royalty Rate for 2003/2004 Royalty Rate for 2005/ ,000, %1.85% 5,000,001-10,000, %1.55% 10,000,001-20,000, %1.25% > 20,000, %0.75%

Present ETSI Policy Ex. 346 § 3.1It is ETSI’s objective to create STANDARDS and TECHNICAL SPECIFICATIONS that are based on solutions which best meet the technical objectives of the European telecommunications sector, as defined by the General Assembly. In order to further this objective the ETSI IPR POLICY seeks to reduce the risk to ETSI, MEMBERS, and others applying ETSI STANDARDS and TECHNICAL SPECIFICATIONS, that investment in the preparation, adoption and application of STANDARDS could be wasted as a result of an ESSENTIAL IPR for a STANDARD or TECHNICAL SPECIFICATION being unavailable. In achieving this objective, the ETSI IPR POLICY seeks a balance between the needs of standardization for public use in the field of telecommunications and the rights of the owners of IPRs. § 3.2 IPR holders whether members of ETSI and their AFFILIATES or third parties, should be adequately and fairly rewarded for the use of their IPRs in the implementation of STANDARDS and TECHNICAL SPECIFICATIONS. From its origins, ETSI has emphasized balance between implementers and innovators:

ETSI Rejected a Mandatory MFL Clause Ex. 341, App’x A (pp. U3-U4) 1993 Interim Policy: § 3.1Licences granted to a PARTY pursuant to clause 2 above shall:... include a clause requiring the licensor to promptly notify a licensee of any licence granted by it to a third party for the same IPRs under comparable circumstances giving rise to terms and conditions that are clearly more favourable, in their entirety, than those granted to the licensee and allowing the licensee to require replacement of the terms and conditions of its licence, in their entirety, either with those of the third party licence, or with such other terms and conditions as the parties may agree.