Cotter on U.S. and German Approaches to FRAND Disputes

I have a new paper on ssrn, titled Like Ships That Pass in the Night: U.S. and German Approaches to FRAND Disputes, forthcoming in FRAND: German Case Law and Global Perspectives (Peter George Picht, Erik Habich & Thomas F. Cotter eds., Edward Elgar Publishing Ltd. 2023).  Here is a link to the paper, and here is the abstract:

  

            The U.S. and German approaches to resolving disputes involving FRAND-committed standard-essential patents (SEP) diverge in many respects. While U.S. courts are reluctant to award injunctive relief in SEP cases, but have shown some willingness to determine FRAND royalties in both bench and jury trials, the German approach is precisely the opposite—with German courts interpreting the CJEUs decision in Huawei v. ZTE as authorizing awards of injunctive relief in many instances, while showing little enthusiasm for actually determining FRAND royalties themselves. The U.S. and Germany also differ in their tolerance for antisuit injunctions, which have become a recurrent topic in global FRAND disputes; and the countries’ perspectives on antitrust law differ fundamentally as well, with antitrust providing one of the few avenues for denying injunctive relief in Germany, while having relatively little bearing on SEP disputes in the U.S. thus far. These divergences reflect not only important differences in legal cultures and institutions but also, arguably, different understandings of optimal innovation policy. One way to transcend these differences might be through the establishment of a global FRAND tribunal or mandatory FRAND arbitration, as others have suggested, though whether such a solution will ever be forthcoming remains to be seen.