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STANDARD-ESSENTIAL PATENTS


“THE AG’S OPINION HAS MADE ONE THING CLEAR: SEEKING AN INJUNCTION AGAINST AN ALLEGED INFRINGER THAT IS WILLING TO BE A LICENSEE MAY BE AN ABUSE OF MARKET DOMINANCE.”


with the AG’s opinion (although lawyers and commentators think it does in 80% of cases)—but


there is still an important


question requiring an answer. Specifically, says Haag, the court will need


to address what “is and will be one of the most difficult questions: what is FRAND and what are FRAND terms?” Freeman agrees and adds that the judgment, when released, should also provide some


indication about how to prove that the terms offered in a proposed licensing agreement were FRAND. Te question of what FRAND entails is not


unusual. In a blog post on the AG’s opinion, Jeremy


Morton, partner at law firm Harbottle & Lewis in London, said the opinion referred to the lack of clarity on what constitutes FRAND and that the issues could be approached better. “Te opinion suggests that standard-setting


organisations could do more to clarify the meaning and effect of FRAND commitments, or at least to provide minimum requirements or a framework or rules of conduct for negotiating FRAND licence terms,” he wrote. Te issue was also one of the points


raised in the European Commission’s public consultation called Patents and Standards. Te consultation, which is seeking responses from patent practitioners and SEP specialists, opened in October last year and closed on February 15. Specifically, it asked what principles and methods are useful in order to apply FRAND terms and what were the causes and consequences of SEP disputes. It is hoped feedback will provide an important guide to the commission when attempting


to improve the European governance of licensing arrangements for patent owners and implementers. Te AG’s opinion has made one thing


clear: seeking an injunction against an alleged infringer that is willing to be a licensee may be an abuse of market dominance. While this may seem favourable for implementers, injunctions may yet be issued if a licence cannot be agreed. But questions remain over whether, and on terms, companies can agree licensing


what


terms—and we seem no closer to knowing what exactly constitutes FRAND terms. While patent practitioners may have been


hoping for a judgment that clears up the uncertainties of SEP licensing, it seems the decision, on the evidence of the AG’s opinion, may have some way to go. More


generally, Freeman notes, Huawei


and ZTE are the largest China-based filers of European patents. “Tey take patents and competition law seriously, which is further sign, if it were needed, of the growing awareness and respect for IP within China’s commercial circles.” Whatever the outcome of this case, it is


another example of the growing convergence between East and West. 


www.worldipreview.com


World Intellectual Property Review May/June 2015


43


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