Friday, June 7, 2019

Delrahim's OECD Speech on FRAND; New FRAND Decision from Germany

I will be taking a blogging break next week (June 10-15).  Before I go, here a couple of items that readers might find interesting:

1.  U.S. Antitrust Division chief Makan Delrahim delivered a speech titled “Don’t Stop Thinking About Tomorrow”: Promoting Innovation by Ensuring Market-Based Application of Antitrust to Intellectual Property, at an OECD Roundtable held in Paris yesterday.  Here is a link to the speech, in which Mr. Delrahim reiterates his view that "violating a FRAND commitment, by itself, should not give rise to an antitrust claim."  And here is a link to the OECD webpage titled "Licensing of IP rights and competition law," which includes short video takeaways from Koren Wong-Ervin and Herbert Hovenkamp, and links to other supporting materials.

2.  On the Kluwer Patent Blog, Thomas Musmann has published a post titled The ‘Non-Discriminatory’ Prong is ‘Essential’ to FRAND Evaluation – Unwired Planet v Huawei – Oberlandesgericht Düsseldorf.  Mr. Musmann discusses a March 22, 2019 decision of the  Oberlandesgericht Düsseldorf.  I haven't read the decision yet myself (link here, in the original German), but according to Mr. Musman, among the key takeaways are that (1) Unwired Planet is bound by the FRAND commitment made by its assignor, Ericsson; (2) that the assignor's licensing practices "set[ ] the benchmark for the [nondiscriminatory] prong for any future licenses";  (3) "the assignee cannot deviate from the license practice of the previous SEP owner unless there are objective reasons justifying the different treatment, for which the SEP owner has the burden of proof"; (4) the SEP owner must "disclose the content of all license agreements that the current and the previous SEP owner concluded," notwithstanding confidentiality agreements; and (5) German courts will require strict compliance with the Huawei v. ZTE back-and-forth of offer, counteroffer, etc. (in contrast to the English courts' view of that procedure as a "safe harbour").  This case will now go on to the BGH, where two Sisvel v. Haier FRAND cases are already pending.

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