Three recent posts by European commentators—one by Matthieu Dhenne on the Kluwer Patent Blog, one by Konstanze Richter on the JUVE Patent Blog, and one by Grégoire Desrousseaux, Océane Millon de La Verteville, and Abdelaziz Khatab for the August Debouzy firm—reference the twin decisions of the Paris Court of Appeal in Xiaomi v. Philips, handed down on December 7, 2021. (So far I have not seen the decisions themselves on the court’s website, but I’m sure they will be available before too long in some format.) Readers should consult the sources above, but to summarize, the court affirmed the lower court’s decision that it has jurisdiction to hear Xiaomi’s contract-based claim, asserted against Philips and ETSI, that it should order Philips to fulfill its obligation to offer a FRAND license or, in the alternative, to set such a license itself. Moreover, if I understand correctly, the decision contemplates that a French court could determine a global FRAND rate. If this decision stands, France would join the U.K. and China as potential forums for a global FRAND determination, at least where an ETSI standard is at issue. This reminds me a bit of the proposal made by Tsang and Lee that I referenced last week, that SSOs should require members to agree to an exclusive forum for deciding disputes, specifically “the jurisdiction that is home to the law specified in the choice of law clause (e.g., French courts for ETSI).” This could be a pretty significant development.
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