An Assessment of Injunctions, Patents, and Standards Following the Court of Justice's Huawei/ZTE Ruling

Miguel Rato and Mark English (Shearman & Sterling) provide An Assessment of Injunctions, Patents, and Standards Following the Court of Justice's Huawei/ZTE Ruling.

ABSTRACT: In its Huawei/ZTE ruling, the Court of Justice of the EU establishes the legal standard for a fair, reasonable, and non-discriminatory (FRAND) defence in EU competition law as a basis for resisting injunction requests in respect of alleged infringement of a standard essential patent.

In our opinion, the Court promotes, in that ruling, a formalistic and stylised test, largely divorced from the reality of licensing negotiations.

It diverges from the test proposed by the Commission in its 2014 Motorola and Samsung decisions and imposes on the implementer/infringer more obligations than had been proposed by the Commission.