Willing to Define Willingness: The (Almost) Final Word on SEP-Based Injunctions In light of Samsung and Motorola

Michela Angeli, Italian Competition Authority, writes on Willing to Define Willingness: The (Almost) Final Word on SEP-Based Injunctions In light of Samsung and Motorola.

ABSTRACT: The decisions adopted by the Commission in the Samsung and Motorola cases establish that seeking injunctions on the basis of a standard essential patent (‘SEP’) for which a commitment to license under FRAND terms and conditions has been given to a Standard Setting Organisation (‘SSO’) violates Article 102 TFEU, unless it can be shown that the implementer is not willing to enter into a license agreement on FRAND terms and conditions.                  

While waiting for the CJEU to clarify the law in the Huawei case, both decisions contribute to the identification of a possible ‘safe harbour’ for both SEPs implementers who want to be protected from injunctions and SEPs holders who want to avoid antitrust liability arising out of the use of SEP-based injunctions.                  

In line with the Commission decisions, Advocate General Wathelet in his opinion in Huawei—handed down on 20 November 2014—proposes steps a SEP holder should take before seeking injunctions in order not to violate Article 102 TFEU, as well as obligations the alleged infringer should comply with to be considered willing.