Hearing Before the CJEU on FRAND/SEPs Scheduled for Tomorrow

Tomorrow the Court of Justice for the European Union will hold a long-awaited hearing in Huawei Technologies Co. Ltd v ZTE Corp., Case C-170/13, on the issue of whether or under what conditions a court may order injunctive relief for the infringement of a FRAND-encumbered standard essential patent.  Here is a link to the CJEU's schedule for tomorrow, and here is the court's home page for this case (no documents up yet, though).  As set forth in the Official Journal of the European Union of July 27, 2013, under the title "Request for a preliminary ruling from the Landgericht Düsseldorf (Germany) lodged on 5 April 2013 — Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH," here is the English translation of the questions referred to the court:

1. Does the proprietor of a standard-essential patent who informs a standardisation body that he is willing to grant any third party a licence on fair, reasonable and non-discriminatory terms abuse his dominant market position if he brings an action for an injunction against a patent infringer although the infringer has declared that he is willing to negotiate concerning such a licence?

or

is an abuse of the dominant market position to be presumed only where the infringer has submitted to the proprietor of a standard-essential patent an acceptable, unconditional offer to conclude a licensing agreement which the patentee cannot refuse without unfairly impeding the infringer or breaching the prohibition of discrimination, and the infringer fulfils his contractual obligations for acts of use already performed in anticipation of the licence to be granted?

2. If abuse of a dominant market position is already to be presumed as a consequence of the infringer’s willingness to negotiate:

Does Article 102 TFEU lay down particular qualitative and/or time requirements in relation to the willingness to negotiate? In particular, can willingness to negotiate be presumed where the patent infringer has merely stated (orally) in a general way that that he is prepared to enter into negotiations, or must the infringer already have entered into negotiations by, for example, submitting specific conditions upon which he is prepared to conclude a licensing agreement?

3. If the submission of an acceptable, unconditional offer to conclude a licensing agreement is a prerequisite for abuse of a dominant market position:

Does Article 102 TFEU lay down particular qualitative and/or time requirements in relation to that offer? Must the offer contain all the provisions which are normally included in licensing agreements in the field of technology in question? In particular, may the offer be made subject to the condition that the standard-essential patent is actually used and/or is shown to be valid?

4. If the fulfilment of the infringer’s obligations arising from the licence that is to be granted is a prerequisite for the abuse of a dominant market position:

Does Article 102 TFEU lay down particular requirements with regard to those acts of fulfilment? Is the infringer particularly required to render an account for past acts of use and/or to pay royalties? May an obligation to pay royalties be discharged, if necessary, by depositing a security?

5. Do the conditions under which the abuse of a dominant position by the proprietor of a standard-essential patent is to be presumed apply also to an action on the ground of other claims (for rendering of accounts, recall of products, damages) arising from a patent infringement?

As soon as I have any further information, I will pass it along.  For readers not familiar with the court's procedures, here is a link to a handy publication published by the court itself, titled The Court of Justice:  Composition, Jurisdiction and Procedures. 

By way of comparison, here is a link to the European Commission's Prohibition Decision of April 29, 2014 (published on July 9) in Case AT.39985 - Motorola - Enforcement of GPRS Standard Essential Patents; and here is a link to the Commission's Commitments Decision of April 29, 2014 (published on May 13) in Case AT.39939 - Samsung - Enforcement of UMTS Standard Essential Patents.