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The ECJ rules on standard-essential patents: thoughts and issues post-Huawei


Picht, Peter Georg (2016). The ECJ rules on standard-essential patents: thoughts and issues post-Huawei. ECLR: European Competition Law Review, 37(9):365-375.

Abstract

The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.

Abstract

The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.

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Additional indexing

Item Type:Journal Article, not refereed, original work
Communities & Collections:02 Faculty of Law > Institute of Legal Sciences > Business Law
Dewey Decimal Classification:340 Law
Uncontrolled Keywords:FRAND; hold-out; hold-up; Huawei; injunction; Orange Book; portfolio license; SEP; smallest saleable unit; smartphone wars; SSO; standard-essential patent; standardization
Language:English
Date:2016
Deposited On:06 Dec 2016 08:17
Last Modified:22 Mar 2017 11:11
Publisher:Sweet & Maxwell
ISSN:0144-3054
Additional Information:Max Planck Institute for Innovation & Competition Research Paper No. 15-11
Related URLs:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2691314

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