Injunctive Relief in Disputes Related to Standard-Essential Patents: Time for the CJEU to Set Fair and Reasonable Presumptions

Abstract

Should injunctive relief be available to the holder of a Standard-Essential Patent (SEP) which committed to license on fair, reasonable and non-discriminatory (FRAND) terms, in order to prevent a third-party implementer from practicing a standard reading on that SEP, when that implementer is willing to take a license but the parties disagree on the terms of the license?This paper focuses on the peculiar European dimension of this debate. It examines how Directive 2004/48 on the enforcement of intellectual property rights, while topical, has been implemented and applied in diverging ways across leading Member States. EU competition law can be used to fill in that harmonization gap. The paper reviews the recent Motorola and Samsung decisions of the Commission, and sets out the issues in Huawei v. ZTE, now pending before the Court of Justice of the European Union (CJEU). The CJEU should be aware of the broader role and impact of EU competition law in these matters, and should seek to use its impending judgment to set the right presumptions for the application of competition law in SEP disputes involving FRAND commitments.