Unwired Planet/Huawei: A Seminal SEP/FRAND Decision From the UK
In: GRUR Int, Vol. 66, Issue 7, 2017, pp. 569-579
29 Pages Posted: 20 May 2017 Last revised: 19 Sep 2017
Date Written: May 11, 2017
With its decision in Unwired Planet (UWP) v. Huawei, Birrs J has not only handed down the first major ruling on SEP/FRAND issues in England but also decided a case that poses a number of questions which are key for this area of the law. Well aware of this, he has drafted a thorough and extensive opinion that is likely to have considerable impact – not only – on the development of EC law. Inter alia, the decision discusses the legal nature of an ETSI FRAND declaration; the question whether “FRAND” is a range or a single set of licensing conditions; the procedural component of FRAND; the existence of a qualified “unFRANDliness”-threshold below which competition law is not triggered; the sequencing of negotiation and litigation over FRAND licences; hard-edged vs. soft-edged discrimination; the role of “Comparables” for calculating FRAND; and the anti-competitiveness of offering a mixed portfolio of SEPs and non-SEPs.
Keywords: Unwired Planet, SEP, FRAND, Non Practicing Entity, SSO, standard-setting, Huawei, ZTE
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