Abstract
On 5 April 2017, the High Court of Justice (the Hon. Mr. Justice Birrs) delivered a thought-provoking judgement in the matter of Unwired Planet vs Huawei.1 The dispute involved the licensing of Standard Essential Patents allegedly reading on mobile telephony standards. Some of these patents were found to be valid and infringed in a series of technical trials. Unwired Planet claimed that Huawei was an unwilling licensee, while Huawei argued that Unwired Planet was abusing its dominant position by demanding royalty rates which were clearly higher than FRAND (fair, reasonable, and non-discriminatory) rates, by insisting on a worldwide license even though it did not enjoy worldwide IP (intellectual property), and by ‘rushing to Court’. Mr. Justice Birr's decision helps clarify two important aspects of standard essential patent (SEP) licensing: the meaning of FRAND and the interplay between European Telecommunications Standards Institute (ETSI) commitments and competition law in disciplining the behaviour of SEP holders. These clarifications rely on a number of key insights from economic analysis.
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