The FRAND Defense Up To Huawei/ZTE

By Niccolò Galli (Max-Planck Institute for Innovation and Competition)

On July 2015, the Court of Justice of the European Union (CJEU) rendered its preliminary ruling Huawei/ZTE. The judgment concerned the FRAND defense, specifically whether the act of seeking judicial remedies against the infringer of standard-essential patents (SEPs) constitutes an abuse of a dominant position. The CJEU solved the contrast between the European Commission’s approach showed in Samsung and Motorola decisions, and the German Orange-Book jurisprudence. This paper analyses the judicial evolution of the FRAND defense, from its German origins to the European developments until the Huawei/ZTE judgment.

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