Huawei: Establishing the Legal Standard for a FRAND Defense as a Basis for Resisting Requests for Injunctive Relief for Infringements of SEPs Under Competition Law

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Miguel Rato, Collette Rawnsley, Mark English, Oct 27, 2015

On July 16, 2015, the Court of Justice handed down the eagerly anticipated preliminary ruling concerning the circumstances in which a (presumptively dominant) standard essential patent holder who has given a commitment to license on fair, reasonable, and non-discriminatory terms may seek injunctive relief without infringing Article 102 of the Treaty on the Functioning of the European Union.

Despite creating antitrust liability for a type of conduct which hitherto had not been considered as capable of producing anticompetitive effects, the judgment confirms that a SEP holder who has given a FRAND commitment does not abuse a dominant position by seeking an injunction against a recalcitrant implementer who refuses to negotiate a license on FRAND terms, employs dilatory tactics, or makes a licensing counter-offer that is not on FRAND terms.