Friday, January 29, 2016

Some European Scholarship on Huawei v. ZTE, Part 2

This blog post is a continuation of the post from Monday, January 18 (see here).  Some more papers on the CJEU's judgment in Huawei v. ZTE:

1. Jérôme Passa has published a paper titled Action en contrefaçon concomitante à la négociation d’une licence FRAND sur un brevet essential à une norme:  conditions de l’abus de position dominante, in the November 2015 issue of Propriété Industrielle.  Here is the abstract (my translation from the French):
Commentary on the Huawei judgment by which the Court of Justice, ruling on the interpretation of article 102 of the TFEU, sets forth the conditions under which the owner of a standard-essential patent , who has committed to grant FRAND licenses to interested third parties, commits an abuse of dominant position in asserting an action for injunctive relief, and thus a pressure, during the course of negotiations for such a license or subsequent to their failure 
This issue of Propriété Industrielle also includes, as part of a multiauthored article on recent decisions of the CJEU on industrial property, a shorter write-up on Huawei by Caroline Rodà.
2.  Peter Picht has posted a paper on ssrn titled The ECJ Ruling on Standard-Essential Patents:  Thoughts and Issues Post-HuaweiHere is a link to the paper, and here is the abstract:
The beneficial effects of standardization can be jeopardized by unwanted conduct of its participants, for instance where a SEP holder engages in hold-up or a standard implementer in hold-out. In its Huawei decision the ECJ attempts to resolve such situations by defining rules of conduct for FRAND disputes. Although promising, the decision evokes new questions and has left many issues unsolved. Among those highlighted in the article are the roles of contract and competition law in relation to the concepts of “good faith and recognized commercial practice”, the ECJ’s excessive reliance on FRAND commitments, the procedural and substantive aspects of FRAND determination and FRAND-compliant conduct, the exact consequences of FRAND violations, and the potential future role of SSOs.
3.  Miguel Rato and Mark English had published a paper titled An Assessment of Injunctions, Patents, and Standards Following the Court of Justice's Huawei/ZTE Ruling, in the Journal of European Competition Law & Practice.  Here is a link to the paper, and here is the abstract:
In its Huawei/ZTE ruling, the Court of Justice of the EU establishes the legal standard for a fair, reasonable, and non-discriminatory (FRAND) defence in EU competition law as a basis for resisting injunction requests in respect of alleged infringement of a standard essential patent. In our opinion, the Court promotes, in that ruling, a formalistic and stylised test, largely divorced from the reality of licensing negotiations. It diverges from the test proposed by the Commission in its 2014 Motorola and Samsung decisions and imposes on the implementer/infringer more obligations than had been proposed by the Commission.

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