Withdrawal of FRAND Defense Precludes Use of FRAND in Hypothetical Negotiation

In ruling on the parties' motions in limine, the court clarified that defendants could not assert FRAND as a non-affirmative or business defense after voluntarily withdrawing FRAND counterclaims and affirmative defenses before trial. "Defendants have voluntarily elected to drop their counterclaims and affirmative defenses as to the issue of FRAND. Nonetheless, the parties continue to dispute the impact of such, namely whether Defendants may continue to assert FRAND as a non-affirmative defense in their reasonable royalty analysis or as a 'business' defense in the hypothetical negotiation scenario in response to Plaintiff’s evidence on damages. . . . Defendants have the affirmative burden of proof in this regard and FRAND is not a purely defensive response to Plaintiff’s damages case. . . . [T]he issue of FRAND is an affirmative defense which, in light of Defendants having voluntarily dropped their counterclaims and affirmative defenses as to FRAND, is now out of this case for all purposes."

WI-LAN Inc. v. HTC Corporation, et. al., 2-11-cv-00068 (TXED October 11, 2013, Order) (Gilstrap, J.)