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

See all articles by Nicolas Petit

Nicolas Petit

University of Liege - School of Law; Hoover Institution; University of South Australia - School of Law

Date Written: October 27, 2015

Abstract

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

Petit, Nicolas, Huaweï v. ZTE: Judicial Conservatism at the Patent-Antitrust Intersection (October 27, 2015). CPI Antitrust Chronicles, Volume 10, Number 2, October 2015 . Available at SSRN: https://ssrn.com/abstract=2681377

Nicolas Petit (Contact Author)

University of Liege - School of Law ( email )

B-4000 Liege
Belgium

Hoover Institution ( email )

Stanford, CA 94305
United States

University of South Australia - School of Law ( email )

GPO Box 2471
Adelaide SA 5001
Australia

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