Huaweï v ZTE: Judicial Conservatism at the Patent-Antitrust Intersection

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Nicolas Petit, Oct 27, 2015

At its core, the preliminary ruling of the Court of Justice of the European Union in Huaweï v ZTE explains whether, and if so how, holders of FRAND-pledged Standard-Essential Patents  abuse a dominant position under Article 102 TFEU when they apply for an injunction and/or product recall against unlicensed implementers of their technology.

Huaweï v ZTE has several specific features. First, it is a judgment of the upper court of the European Union. Only this Court can provide a definitive interpretation of Article 102 TFUE. Once affirmed, CJEU-made law applies to all stakeholders in Europe. With this, Huaweï v ZTE can be expected to set an EU-wide antitrust standard on the question of injunctive relief for FRAND-pledged SEPs.

Second, judgments issued under the preliminary rulings procedure relate to questions of law, not facts. Neither their reasoning, nor their operative parts, lend themselves to much distinguishing on grounds of case-specificity, beyond the factual framework delineated in the question addressed to the Court. In Huaweï v ZTE, the questions referred to the Court were phrased in large terms and concerned the conduct of holders of FRAND-pledged SEPs generally. Huaweï v ZTE can thus be deemed to talk of principles.

This short paper contends that Huaweï v ZTE is a conservative judgment.