Edited by Pier L. Parcu, Giorgio Monti and Marco Botta
Chapter 5: Standard-essential patents and abusive patent injunctions – the interplay between German courts and the CJEU
In many industries, technical standards established within the framework of standard-setting organizations (SSOs) play an important role, as they ensure the interoperability of products and services. Under the normal SSOs’ rules, the holder of patents essential to the standard selected (so-called standard-essential patents, SEPs) must commit to license its SEPs to any interested third party under fair, reasonable and non-discriminatory (FRAND) terms and conditions. Yet, no consensus exists on what FRAND terms are or how to determine them. Rather, the determination of the licensing terms is left to the negotiations between the SEP holders and the potential licensees. Not infrequently, negotiations break down. As the potential licensee will normally depend on the possibility to make use of the patented innovation, the question has arisen whether the SEP holder can impede the use of their patent by requesting a court injunction against the breach of patent in such cases, or whether and when a request for an injunction will constitute an abuse of a dominant position. The threat of an injunction will greatly increase the patent holder’s bargaining power. Where such an injunction is not possible, the bargaining power of the potential licensee will increase. The chapter aims to analyse the standard of assessment of patent injunctions under Article 102 TFEU in the light of the CJEU ruling in Huawei (Case C-170/13). It analyses the judgment with reference to the related German jurisprudence (namely Orange Book), in order to assess whether German standards will need to be adjusted. The positions adopted in other jurisdictions are also taken into account. Keywords: SEP; SSO; Huawei; FRAND; German courts; Orange Book
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