FRAND Patents in Europe in the Post-Huawei Era: A Recent Report from Germany
Chapter 16 in: Hilty/Liu (eds), SEPs, SSOs and FRAND – Asian and Global Perspectives on Fostering Innovation in Interconnectivity, Springer, 2018 (Forthcoming)
27 Pages Posted: 6 Nov 2018 Last revised: 12 Apr 2019
Date Written: November 5, 2018
Since 2015, the enforcement of FRAND patents in Europe is governed by the framework laid down in the Huawei/ZTE judgment of the CJEU. Influential post-Huawei/ZTE cases have been decided in Germany and the UK. After a brief outline of the development leading to Huawei/ZTE and of the contents of the Huawei/ZTE judgment, the present paper mainly reports on recent case law from Germany (with some comparative remarks and references on case law in England, the U.S. and China). Essentially, the paper argues that the German courts have specified the framework set by Huawei/ZTE, thereby tentatively answering many of the open questions raised by the rather generally framed judgment of the CJEU. Notwithstanding some remaining problems and some contradictions between the German courts’ approach and the English High Court’s as well as the Court of Appeal’s approach in Unwired Planet/Huawei, the present paper argues that enforcement of FRAND patents in Europe has become considerably more predictable since Huawei/ZTE, and that the general framework, established by the CJEU, allows for the development of fair and workable procedural standards guiding the enforcement of SEP’s and the possible competition law defence in Europe. In addition, the paper tries to identify and specify the fundamental considerations underpinning Huawei/ZTE. This allows to consider whether and to what extent the CJEU’s Huawei/ZTE doctrine should be broadened beyond the realm of genuine SEPs, which lead to a dominant position of the right holder, in the future. Also some additional avenues for the solution of SEP problems (such as through further upstream regulation of the standardization process and institutions, contract law and/or civil procedural law) are briefly proposed, which should be further developed and tested in the future.
Keywords: SEP, FRAND, Huawei, ZTE, dominance, patent, standard-essential, essentiality, notice of infringement, licensing offer, patent ambush, patent assertion entity, royalty stacking, hold up, hold out, Art. 101 TFEU, Art. 102 TFEU, third party determination, recognized commercial practice, German case law
JEL Classification: K
Suggested Citation: Suggested Citation