Tuesday, May 19, 2020
ABSTRACT: Very few judgements from the EU level have reshaped daily court practice like Huawei vs. ZTE1 did for standard-essential patent (‘SEP’) litigation2. Five years after, the national courts have had ample opportunity to adjust and to advance their view on how to transpose the Court of Justice of the European Union’s (‘CJEU’) landmark decision. Questions dealt with include most notably:
Does every SEP necessarily confer dominance to its holder?
How detailed does an infringement notice need to be, particularly if a portfolio license is sought after?
When can the patent owner safely conclude that the user is an unwilling licensee and the seeking of an injunction thus justified?
And, most importantly, how to determine a fair, reasonable, and non-discriminatory (‘FRAND’) license offer.
This paper gives an overview of the current state of play and of the questions that (appear to) remain open todate.