Monday, March 20, 2017

Some New Papers on FRAND

1.  Hanns Ulrich has posted a paper on ssrn titled FRAND Access to Open Standards and the Patent Exclusivity:  Restating the Principles.  Here is a link to the paper, and here is the abstract:
When technical standards are to be defined pursuant to the claims of a patent and, therefore, the use of the standard will necessarily infringe that standard-essential patent (SEP), the proprietor may commit to granting all users a license at fair, reasonable and non-discriminatory (FRAND) conditions as a way to promote acceptance of the standard by the market. However, the relationship between such FRAND licensing commitment and a patentee’s right to seek and obtain injunctive relief from patent infringement by standard implementers not (yet) having entered into a license agreement remains controversial. In Huawei Technologies v. ZTE, the Court of Justice of the EU has shown a way to overcome the tension between the protection of patents by prohibitory orders and open access to innovative standards that has its origin in general principles of commercial law rather than in competition law. In view of this new approach, the paper restates the legal principles that, as a matter of public policy, govern the interaction of patent protection and open standardization in the EU. These principles are the free choice of patent protection and of a standard setting organization pursuing a particular IPR policy, and the self-regulatory organization of open, innovative standard setting on the one hand, and, on the other, the complementary functioning of patent protection and institutionalized open standard setting as a way to promote innovation and its dissemination. That principled framework regulation of dynamic markets also calls for holding all market actors concerned responsible for exercising their freedom in conformity with rules of fairness so that, ultimately, the complementary public policies underlying patent protection and innovative standardization, respectively, will be satisfied. While competition law reinforces the rules for such responsible conduct, they rest on and need to be implemented by reference to the legal framework of open innovative standardization itself. By way of conclusion, the EU’s negotiation approach to determining the meaning of FRAND in a particular case is put in contrast to quasi-regulatory approaches that by assimilating a standard to an essential facility subject SEPs to a mandatory licensing rule and, therefore, also to determination of FRAND terms by administrative or judicial decision. 
2.  Jonas Block has published a paper titled Achtzehn Monate nach EuGH „Huawei/ZTE‟:  Die Rechtsprechung der deutschen Instanzgerichte (“Eighteen Months following the CJEU’s Huawei/ZTE Deciion:  The Case Law of the German Lower Courts”) in the February 2017 issue of GRUR (Gewerblicher Rechtschutz und Urheberrecht), pp. 121-27.  Here is the abstract (my translation):Since the publication of the July 16, 2015 decision of the CJEU in the Huawei Technologies/ZTE  case (GRUR 2015, 764), the patent bar has paid close attention to the lower courts’ application of the conditions set out in the decision.   Within the first year there have been a range of fundamental, as well as corrective, decisions of the patent dispute chambers and senates in Mannheim, Karlsruhe, and Düsseldorf.

3.  Tobias Wuttke has published a paper titled Aktuelles aus dem Bereich der „Patent Litigation: Überblick über aktuelle instanzgerichtliche Rechtsprechung ("News in the Area of Patent Litigation:  Overview of Recent Lower Court Decisions”) in the February 2017 issue of Mitteilungen der deutschen Patentanwälten (pp. 56-62).  Here is the abstract (again, my translation):
The law of patent infringement has developed in numerous relevant respects within the period under review.  Following the opinion of [German jurist] Keukenschrijver, the Munich District Court has established a two-step test for analyzing when the prior user right applies to further developments of the technology in question.  Moreover, the Mannheim and Düsseldorf patent dispute chambers have clarified the CJEU’s conditions for asserting the FRAND objection.
The article also discusses a decision of the Düsseldorf Court of Appeals (Case No. I-15 U 34/14, June 3, 2015) setting out the framework for determining the portion of the infringer’s profits to award when the patent owner seeks an award of infringer's profits.  I’ll read this more closely and report back in the near future.  
For other recent discussions of the German FRAND cases, see the papers I've mentioned here and here.

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