Thursday, January 31, 2019

English Court May Determine Global FRAND Rate

Yesterday, the Court of Appeal for England and Wales denied an appeal brought by Huawei and ZTE in Huawei Technologies Co. v. Conversant Wireless Licensing S.A.R.L.  (Hat tip to Jorge Contreras, who brought this decision to my attention.)  The facts, briefly, are that Conversant owns a portfolio of allegedly standard-essential patents.  In 2017, it sued Huawei and ZTE in the U.K. for infringement of the U.K. SEPs, and has sought a declaration of the terms of a global FRAND license (as in Unwired Planet v. Huawei).  In April 2018, Mr. Justice Carr denied the defendants' motions to stay the matter on the ground of forum non conveniens, principally on the ground that it was unclear that China (where the bulk of the defendant's products are made and sold) would be an alternative forum for determining a global FRAND rate.  Yesterday the appellate court rejected the defendants' appeal, so presumably the matter will proceed at some point to trial in England (though Conversant has stipulated that if the four U.K. patents are all found to be invalid or not infringed, it will withdraw the request that the English court make a global FRAND determination.  For a somewhat more detailed discussion of the case, Bristows (counsel for ZTE) has published a short write-up (available here), as has IPKat.  I'll be sure to add this development to the presentations I'll be giving next week in Japan.

For previous mention on this blog of Mr. Justice Carr's April 2018 decision, see here and here.

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Also of interest in today's news is a post by Simon Michels on the Kluwer IP Blog titled .  The author discusses the November 21, 2017 decision of the German Federal Patent Court in the Isentress compulsory licensing saga (for previous discuss of which on this blog, see here, here and here), detailing the factors to consider in determining the reasonable royalty rate. 

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