SEP Holders Research Articles

The ECJ Rules on Standard-Essential Patents: Thoughts and Issues Post-Huawei

The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.

The ECJ Rules on Standard-Essential Patents: Thoughts and Issues Post-<i>Huawei</i>

The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.

Legal Analysis on SEP Holders’ Abuse of Patent Rights Case- Focused on Qualcomm Case -

Legal Analysis on SEP Holders’ Abuse of Patent Rights Case- Focused on Qualcomm Case -

Legal Analysis on SEP Holders’ Abuse of Patent Rights Case- Focused on Qualcomm Case -

Legal Analysis on SEP Holders’ Abuse of Patent Rights Case- Focused on Qualcomm Case -

Huawei v ZTE: Established Case Law and Open Issues after ECJ's Judgment

The referring Court had raised the question whether an action for infringement brought by a FRAND-encumbered SEP holder against an undertaking which manufactures products in accordance with that standard constitutes an abuse of a dominant position.The ECJ’s judgment had been long awaited as it was expected to strike a balance among two different approaches.

The SEP Holder’s Guide to the Antitrust Galaxy: FRAND and Injunctions

Standardization has proven to be a source of considerable benefits but for antitrust it can be a field laden with dangers. Recent Article 102 TFEU investigations related to standard-setting focus on the issue of availability of injunctive relief for FRAND-encumbered SEPs and compatibility of such litigation with antitrust rules on unilateral behaviour. The heterogeneity, which characterizes the outcome of these probes across jurisdictions reflects the diversity of opinions found in academic scholarship. This notwithstanding, there is consensus that the concept of the willing licensee is decisive in this regard, while public interest considerations can play an equally crucial role. A German reference for a CJEU preliminary ruling sought guidance regarding the appropriate legal standard for such cases. SEP holders appear creative as to their lines of defence against Commission allegations, but past antitrust practice vis-à-vis dominant pioneers indicates that the avenue of offering legally binding commitments is an option that merits consideration.

Ten Years of DG Competition Effort to Provide Guidance on the Application of Competition Rules to the Licensing of Standard-Essential Patents: Where Do We Stand?

One of the most intractable competition issues for the European Commission (the “Commission”) over the last ten years has been to define the circumstances in which the licensing conduct or litigation strategy of a standard-essential patent (often referred to as “SEP”) holders amount to an abuse of a dominant position in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU). This issue has been particularly difficult to handle, not only because of the complex nature of the legal and economic questions it raises, but also because of the significant business issues at stake. Hundreds of millions of dollars may be at stake in licensing negotiations.The enforcement of SEPs has made headlines in the context of the “smartphone war”, where the main device manufacturers (Google Motorola, Samsung, HTC, Nokia, etc.) have been litigating heavily in court. For instance, the patent dispute between Apple and Samsung has generated over 50 lawsuits in a variety of jurisdictions. Some of these manufacturers have also filed competition complaints on both sides of the Atlantic, as well as in other jurisdictions. These complaints have, in turn, triggered investigations into the licensing conduct and litigation strategy of several SEP holders, which will be discussed below.Against this background, the purpose of this paper is to address the competition law issues that may be raised by the licensing conduct and/or enforcement strategy of SEP holders. Section II reviews the Commission’s efforts in recent years to address the competition law concerns raised by SEPs. It will be shown that the Commission has used a variety of approaches to attempt to set some principles regarding the licensing of SEPs. The Commission still needs to create a precedent, which is probably its intention by sending a Statement of Objections to Samsung in December 2012. Section III contains a brief conclusion.