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The Legal Framework for SEP Disputes in EU Post-Huawei: Whither Harmonization?

41 Pages Posted: 13 Aug 2017 Last revised: 18 Aug 2017

Nicolo Zingales

University of Sussex Law School; Tilburg Law and Economics Center (TILEC); Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Stanford University - Stanford Law School Center for Internet and Society

Date Written: August 11, 2017

Abstract

This article revisits the antitrust treatment of unilateral conduct in Standard Essential Patent (SEP) disputes in EU, with particular focus on the landmark CJEU judgment in Huawei v ZTE and the way it has affected subsequent developments before national courts. It illustrates that while the Court in Huawei significantly improved legal certainty both for SEP holders and their potential licensees, it also left open a number of crucial questions affecting everyday’s licensing practice. First, it is not entirely clear whether the liability of an SEP holder presupposes leveraging by a vertically integrated firm or can also arise in purely vertical or horizontal relationships. Secondly, the safe harbor procedure formulated in the judgment begs important questions concerning burden of proof and portfolio licensing, which have given rise to divergent interpretations. It follows that the space remains wide open for competing national and even regional approaches to the rights and obligations of SEP holders, calling for further European harmonization - be it judicially, legislatively, or administratively through the European Commission. In support for the latter measures, the article illustrates the limited remit of EU private international law rules in preventing the forum shopping which is likely to unfold as a result of a fragmented landscape for the resolution of SEP disputes.

Keywords: Standard Essential Patents, Injunctions, Huawei v ZTE, Forum Shopping, Recast Regulation

JEL Classification: K41, K21, L40, O32, O34, O38

Suggested Citation

Zingales, Nicolo, The Legal Framework for SEP Disputes in EU Post-Huawei: Whither Harmonization? (August 11, 2017). TILEC Discussion Paper No. 2017-032. Available at SSRN: https://ssrn.com/abstract=3017102

Nicolo Zingales (Contact Author)

University of Sussex Law School ( email )

Falmer
Brighton BN1 9QN
United Kingdom

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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