Huawei v ZTE – No More Need to Look at the Orange Book in SEP Disputes

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James Killick, Stratigoula Sakellariou, Oct 27, 2015

Industry standards are crucial for economic development—they reduce transaction and production costs; they increase efficiency; they ensure network interoperability. A number of industries, such as telecoms, IT, and automotive heavily rely on standards. Once a standard has been adopted, standard-setting organizations usually require owners of patents found to be essential to the standard (Standard-Essential Patents) to commit to charging a fair, reasonable, and non-discriminatory  royalty to the users of the selected technology.

Given that standards covering equipment such as smartphones, games consoles, computers, DVD players, and the like are implemented on a global basis, patents essential to those standards are a global issue and create global challenges (given the similarity in the products using them around the world). A number of patent disputes have developed between SEP holders and tech companies using the standardized technology. One major debate focuses on the conditions under which SEP holders can seek injunctions based on infringement of the patents for which a FRAND commitment has been given.

This article analyzes the long-awaited judgment of the Court of Justice of the European Union in Huawei v ZTE which was handed down on July 16, 2015. The judgment provides a structured framework for when EU competition law permits SEP holders wh…

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