SEP-Based Injunctions: How Much Has the Huawei v ZTE Judgment Achieved in Practice?

Abstract

Competition law has played a significant role in the area of standardisation for many years. This article focuses on the use of injunctions based on Standard Essential Patents (SEPs). The landmark 2015 Huawei v ZTE judgment of the European Court of Justice (CJEU) established certain core principles with regard to both the general applicability of EU competition law to standardisation and to the specific issue of SEP-based injunctions. The aim of this article is to examine to what extent those principles are being lived up to in the EU jurisdiction where most SEP-related litigation takes place—Germany. In order to do so effectively, it is first necessary to outline the competition context of standardisation and examine both the European Commission’s general policy approach and its case enforcement practice in relation to SEP-based injunctions. This article is therefore structured as follows: section B begins by analysing the relevance of competition law in the standardisation arena. Section C then describes the European Commission’s approach to SEPs and competition law, both in terms of general policy and as regard the specific issue of SEP-based injunctions, with Section D outlining the approach taken by the CJEU in Huawei v ZTE. Section E then describes how various German courts have examined SEP-based injunctions after Huawei v ZTE, with Section F concluding by assessing to what extent the judgments in question are consistent with Huawei v ZTE and the consequences of that assessment.