The High Court Judgment on Unwired Planet vs. Huawei Narrows the Scope of Competition Law Defence in SEP Litigation

Abstract

On 5 April 2017 the High Court of Justice of England and Wales (Hon. Justice Birss) issued its long awaited judgment on the patent dispute between Unwired Planet and Huawei. The ruling is of high relevance, as it is the first decision adopted by a judge in the UK after the Court of Justice of the European Union (“CJEU”), in its preliminary ruling on the Huawei case, provided the stakeholders with detailed guidance on how the holders of standard-essential patents (“SEPs”) and implementers have to comply with competition law during negotiations for the license of SEPs.

Differently from what the Court of Appeal of Dusseldorf did in another “post-Huawei” case (Sisvel v. Haier), the UK judge does not offer a formalistic interpretation of the principles expressed by the CJEU in Huawei and leaves wide room for a case-by-case approach which keeps into account specific features such as the defendant’s sophistication and its countervailing buyer power.

This ruling enriches the existing case law on SEP. In particular, it provides an interesting analysis on two aspects:

(i) the legal nature of FRAND commitments and their enforceability under contract law;

(ii) the scope of the competition law defence in light of CJEU’s ruling in Huawei.

Keywords: EU competition law, abuse of dominant position, IP, SEP, FRAND, injunctions, Unwired Planet, Huawei, High Court

JEL Classification: K20, K21