no more arguing for french frand...
For the first time, Respondents now take the position that the ETSI FRAND undertaking is an obligation committing the patent holder to grant a license in the future. Resp. Pet. at 91-92. Respondents did not make this argument before the ALJ or submit any evidence supporting it. Rather, Respondents relied solely on the opinion of their French law expert, Prof. Aynès, who took the distinct position that an undertaking made to ETSI is itself a patent license. Compl. Br. at 513; RX-3522C (Aynès) at ¶ 54. While Respondents are no longer willing to make that argument (perhaps because it has now been rejected by several courts, see Compl. Br. at 514-15), having relied solely on that argument at the hearing, they cannot now assert a new argument for the first time in a petition for review. See Ground Rule 7c (contentions not asserted in prehearing statement are abandoned/withdrawn).
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