Like Ships That Pass in the Night: U.S. and German Approaches to FRAND Disputes

Forthcoming in FRAND: German Case Law and Global Perspectives (Peter George Picht, Erik Habich & Thomas F. Cotter eds., Edward Elgar Publishing Ltd. 2023).

Minnesota Legal Studies Research Paper No. 22-10

27 Pages Posted: 28 Jul 2022 Last revised: 27 Sep 2022

See all articles by Thomas F. Cotter

Thomas F. Cotter

University of Minnesota Law School

Date Written: July 11, 2022

Abstract

The U.S. and German approaches to resolving disputes involving FRAND-committed standard-essential patents (SEP) diverge in many respects. While U.S. courts are reluctant to award injunctive relief in SEP cases, but have shown some willingness to determine FRAND royalties in both bench and jury trials, the German approach is precisely the opposite—with German courts interpreting the CJEUs decision in Huawei v. ZTE as authorizing awards of injunctive relief in many instances, while showing little enthusiasm for actually determining FRAND royalties themselves. The U.S. and Germany also differ in their tolerance for antisuit injunctions, which have become a recurrent topic in global FRAND disputes; and the countries’ perspectives on antitrust law differ fundamentally as well, with antitrust providing one of the few avenues for denying injunctive relief in Germany, while having relatively little bearing on SEP disputes in the U.S. thus far. These divergences reflect not only important differences in legal cultures and institutions but also, arguably, different understandings of optimal innovation policy. One way to transcend these differences might be through the establishment of a global FRAND tribunal or mandatory FRAND arbitration, as others have suggested, though whether such a solution will ever be forthcoming remains to be seen.

Keywords: Patents, Remedies, Damages, FRAND, RAND, Standard-Essential Patents, Royalties, Germany, United States, Comparative Law, Intellectual Property

Suggested Citation

Cotter, Thomas F., Like Ships That Pass in the Night: U.S. and German Approaches to FRAND Disputes (July 11, 2022). Forthcoming in FRAND: German Case Law and Global Perspectives (Peter George Picht, Erik Habich & Thomas F. Cotter eds., Edward Elgar Publishing Ltd. 2023)., Minnesota Legal Studies Research Paper No. 22-10, Available at SSRN: https://ssrn.com/abstract=4160170

Thomas F. Cotter (Contact Author)

University of Minnesota Law School ( email )

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