In this hypothetical opinion, I decide the FRAND questions now before the United Kingdom Supreme Court in Optis v. Apple as I would decide them were I sitting on the appeal. The exercise is not a prediction. Its purpose is to show that the appeal can be resolved without reaching the question that has come to dominate FRAND litigation—which comparable licenses are probative of the rate, and what royalty they imply.

The FRAND undertaking that the owner of a standard-essential patent gives to a standard-setting organization is, in law, a contract, of which a willing implementer is the intended third-party beneficiary. The patentee’s FRAND offer confers on the implementer a power of acceptance. Like any power of acceptance, that power is not perpetual: the implementer exhausts it by rejecting the offer, by countering without moving, or by failing, within a reasonable time, to bind itself to the terms that a court determines to be FRAND. On the findings below, the implementer exhausted that power, and the appeal therefore fails at the threshold—without resort to the sealed comparable licenses on which the parties’ valuation dispute depends.

I conclude further that the nondiscrimination requirement is a general standard rather than a hard-edged rule, offending only differential treatment of similarly situated licensees that lacks a valid economic justification; that the royalty floor said to arise from the parallel foreign proceedings is nil, the foreign tribunal having found no infringement; and that the questions of comparable-license methodology, past sales, and remittal need not, and so should not, be reached.