The ECJ Rules on Standard-Essential Patents: Thoughts and Issues Post-Huawei
in: 37 E.C.L.R. (European Competition Law Review) 365-375 (2016)
Posted: 19 Nov 2015 Last revised: 17 Sep 2016
Date Written: November 16, 2015
The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.
Keywords: FRAND; hold-out; hold-up; Huawei; injunction; Orange Book; portfolio license; SEP; smallest saleable unit; smartphone wars; SSO; standard-essential patent; standardization
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