Huaweï v. ZTE: Judicial Conservatism at the Patent-Antitrust Intersection
CPI Antitrust Chronicles, Volume 10, Number 2, October 2015
8 Pages Posted: 27 Oct 2015
Date Written: October 27, 2015
This paper argues that the judgment of the Court of Justice of the EU in Huaweï v ZTE is of conservative craft. Huaweï v ZTE only extends by a razor-thin margin the zone of antitrust liability for patent owners. The Court appears reluctant to relax its traditional case-law that affirms antitrust liability on patent owners only in “exceptional circumstances.” To be sure, the Court admits that SEPs covered by a FRAND pledge generate “particular circumstances,” which justify an extension of antitrust liability. But on careful read, the Court only expands antitrust liability in relation to a slice of cases of injunctions on FRAND-pledged SEPs that lead to exclusionary leveraging. This, in turn, relieves a number of upstream licensing entities from antitrust liability.
Keywords: Patents, antitrust, standards, FRAND, injunctions, abuse of dominance
JEL Classification: K00, K20, K21, K40, K42, L40, L41
Suggested Citation: Suggested Citation