Peter Georg Picht has published the paper “FRAND determination in TCL v. Ericsson and Unwired Planet v. Huawei: Same same but different” in which he focuses on the treatment of the two approaches in FRAND calculation: “top-down” and “comparable licenses”.
As to the relative importance of these two calculation approaches, the author contends that comparable licenses seem more relevant regarding the facts at issue. If good comparable licenses are at hand, they should loom large and produce the default results. Comparables and, in particular, the way in which they were concluded come into play because they can document patterns of customary market behavior.
Regarding the top-down valuation methodology, he notes that it creates more problems than solutions to treat publicly announced royalty rates as a form of binding “pledge”, and that extensive “mid-point guessing” by judges/ parties can be problematic. Peter Georg Picht notes that it is quite questionable whether top-down calculations should loom larger than the collective “market intelligence” embodied in comparable licenses, especially when the licenses were negotiated by experienced players and absent impending litigation or similar pressure factors.