In a First, Seattle Judge Sets RAND Rate in MS v. Motorola ~pj

I did tell you not to be surprised if the judge in Microsoft's home court in Seattle favored Microsoft in setting a RAND rate for a couple of Motorola standard essential patents in Microsoft v. Motorola. And in fact, he more or less did, in a Findings of Fact and Conclusions of Law [PDF, 207 pages], although he ordered more than Microsoft offered or thought fair. But interestingly, as Matt Rizzolo points out on The Essential Patent Blog, he used Motorola's methodology to come up with a figure, not Microsoft's:

One interesting thing about the findings is that while the ultimate RAND royalty appears to favor Microsoft, Judge Robart seems to have sided with Motorola as to the right approach to determine RAND royalties - simulating a hypothetical, bilateral negotiation between the parties (whereas Microsoft had suggested determining RAND on the basis of an ex ante, multilateral negotiation at the time of the standard's adoption).

I feel confident that this will be appealed by Motorola, because the judge in effect sets the "rule" that you can be ordered to accept pool rates in pools you haven't joined instead of following the normal negotiation structure of the standard body you did agree to put your standard essential patents in. And that just can't be right. Who'd donate patents to standards bodies if they know it has no bearing on the royalties they can expect in return?