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10 Eur. Competition J. 1 (2014)

handle is hein.journals/eurcompet10 and id is 1 raw text is: European Competition Journal DOI:10.5235/17441056.10.1.1 STANDARD-ESSENTIAL PATENTS: FRAND COMMITMENTS, INJUNCTIONS AND THE SMARTPHONE WARS ALISONJONES* A. INTRODUCTION In 2013, in the case of Huawel Technologies v ZTE, the Regional Court of Dtisseldorf (Landgericht Dtisseldorf) referred a number of questions to the Court of Justice (ECJ).' In particular, it asked the ECJ whether and, if so, when it might constitute an abuse of a dominant position contrary to Article 102 TFEU for a patent holder, in this case the holder of a standard-essential patent (SEP) which had given a commitment to license that SEP to any third party on fair, reasonable and non-discriminatory (FRAND) terms, to seek an injunction against a potential licensee alleged to be infringing the patent. The case raises a number of difficult issues for resolution at the interface of antitrust and patent law, and especially the question of whether and, if so, when it is legitimate for competition law to encroach on exclusive patent rights. Sections B and C start by examining the background to the case, which is essential to understanding the questions raised and how they might be answered. They set out the factors that triggered the dispute in Huawel Technologies and examine core cases in which applications for injunctions made by FRAND- encumbered SEP holders have had to be considered in the EU. It is seen that developments in the national courts, and before the European Commission (the Commission), support a fairly broad consensus that SEP holders which have committed to licensing their patents on FRAND terms should not ordinarily be permitted to undermine the objectives of that commitment by obtaining an injunction against potential licensees willing to take a FRAND licence. Nonetheless, SEP holders have been able to take advantage of favourable court processes in Germany to obtain injunctions to protect their SEPs and to prevent infringements of the patents by implementers of the standard in Germany. These cases are having implications for, and an impact on, imple- menters beyond Germany, throughout the EU. Concern about the compatibility Professor of Law at King's College, London. The author thanks Kirsten Edwards-Warren, Liza Lovdahl-Gormsen and Brenda Sufrin for helpful comments on an earlier draft of this paper. C-170/13 (judgment pending). April 2014 1

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