Thursday, November 20, 2014

Opinion of the Advocate General in the CJEU's Huawei v. ZTE FRAND Case

Here is a link to CJEU's webpage, from which you can download today's Opinion of the Advocate General in German, French, Spanish, Italian, and several other languages, but not English.  I've just started skimming the German version (it's 7:00 in the morning where I am), and I may report back later today with more detail, but here's what I gather so far based primarily on the conclusion (Ergebnis) paragraph 103: 

1.  The owner of a FRAND-encumbered SEP abuses its dominant position by seeking an injunction when it is shown that it has not kept his commitment even though the defendant is ready, willing, and able to conclude a license on FRAND terms.
2.  The SEP owner should convey a comprehensive written offer to the defendant before seeking an injunction.
3.  The accused infringer should react to this offer carefully and seriously.  If he rejects it, he should within a short time propose a counteroffer.  It is not an abuse of dominant position if the accused infringer's behavior is strategic or hesitant or insincere. 
4.  If negotiations are fruitless, the accused infringer is not acting hesitantly or insincerely if it requests a determination of FRAND conditions from a court or arbitration panel.  In such a case, the SEP owner can demand a bank guaranty or deposit in escrow for the payment of past or future royalties.
5.   The accused infringer is not acting hesitantly or insincerely if it requests a determination of whether the patent is valid and infringed.
6.  The SEP owner is not abusing its dominant position if it requests financial information, but the court should ensure that the measures are reasonable and proportionate.
7.  The SEP owner's request for damages for past infringement is not an abuse of dominant position.
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On a somewhat related note, Spicy IP and FOSS Patents both have coverage this week on the Indian FRAND case between Ericsson and Micromax.  The court lowered the interim royalty rates that Micromax must pay Ericsson pending trial.  According to the court's order, "It is made clear that the above order is purely an interim arrangement and is not a determination of the FRAND rates for the Ericsson portfolio," and "It is directed that the trial in any event will be completed not later than 31st December, 2015."

1 comment:

  1. Here is an english version :