1. Michael Nieder has published an article titled EPG-Widerklage auf gerichtliche Bestimmung einer angemessenen FRAND-Lizenz?—Zur Entscheidung der LK Mannheim vom 22.11.2024—UPC CFI 210/2023 (“UPC Counterclaim for a Judicial Determination of a Reasonable FRAND License?—On the Nov. 11, 2024 Decision of the Mannheim Local Division— UPC CFI 210/2023”), 2025 GRUR Patent 401. Here is the abstract:
The EPG [UPC] has so far issued two injunctions for infringement of a standard-essential patent (SEP) in cases where the FRAND issue played a role. These are the decisions of the EPG Local Division Mannheim of November 22, 2024—UPC CFI 210/2023—Panasonic/OPPO an OROPE and the EPG Local Division Munich of December 18, 2024—UPC CFI 9/2023—Huawei/Netgear. Due to corresponding counterclaims by the defendants, the question of the possibility of a court determining the appropriate rate for a FRAND license arose only in the Panasonic/OPPO and OROPE case. The following remarks deal with this issue.
In the course of the article, Dr. Nieder argues against the position taken by Matthias Leistner (who believes the UPC has jurisdiction to determine FRAND rates), and in favor of the position taken by Peter Meier-Beck and by Tim Dornis (that it doesn’t). For my previous commentary on the Mannheim decision, see here; for previous posts on Dr. Leistner’s and Judge Meier-Beck’s takes on the issue discussed by Dr. Nieder, see here and here.
2. Runhua Want has posted an article on ssrn titled Irrational Unwillingness in SEP Licensing, 34 Tex. Intell. Prop. L.J. __ (forthcoming 2025). Here is a link to the paper, and here is the abstract:
The role of injunctions in guiding standard-essential patent (SEP) licensing negotiations is important but remains unclear. Many SEP holders argue that a high threshold for injunctions fails to protect them against holdout and efficient infringement. By contrast, SEP implementers are concerned about patent holdup resulting from threats of injunctions by SEP holders. This conflict raises a broader policy issue: how should legal institutions guide parties toward efficient licensing negotiations? However, since the United States withdrew its most recent guidance in 2021, it has lacked a clear position on this issue. Other jurisdictions likewise face challenges in designing effective injunction rules. Among these challenges, the definition of unwilling licensees, a key factor in granting injunctions, remains inconsistent and under development. This Article addresses the unsettled role of injunctions in SEP licensing negotiations and contributes to the policy debate by analyzing cognitive and structural barriers to implementer cooperation. Specifically, it examines whether injunction rules can be designed to effectively enhance the willingness of implementers to license. To that end, it reviews public feedback submitted in a semi-structured survey, which was conducted by the United States Department of Justice in 2022. The survey examined both the thresholds for injunctions and the standards for identifying unwilling licensees. This Article documents various approaches to identifying unwilling licensees, as suggested in the feedback. Based on the documented feedback and textual analysis, the Article identifies four motivations that underline SEP implementers' lack of cooperation in licensing negotiations: 1) resistance to holdup, 2) information asymmetries, 3) habitual holdout and efficient infringement, and 4) financial constraints. These motivations reflect not only strategic behavior but also deeper cognitive biases held by both SEP holders and implementers. This Article argues that due to the cognitive biases, injunction rules, regardless of their design, face inherent limitations in promoting efficient licensing.
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