ABSTRACT
Since 2015, the enforcement of FRAND patents in Europe has been governed by the framework laid down in the Huawei/ZTE judgment of the CJEU. Influential post-Huawei/ZTE cases have been decided in Germany and the UK. After a brief outline of the development leading to Huawei/ZTE and of the contents of the Huawei/ZTE judgment, the chapter mainly reports on recent case law from Germany (with some comparative remarks and references on case law in England, the U.S. and China). Essentially, it argues that the German courts have specified the framework set by Huawei/ZTE, thereby tentatively answering many of the open questions raised by the rather generally framed judgment of the CJEU. Notwithstanding some remaining problems and some contradictions between the German courts’ approach and the English High Court’s as well as the Court of Appeal’s approach in Unwired Planet/Huawei, the present chapter argues that enforcement of FRAND patents in Europe has become considerably more predictable since Huawei/ZTE, and that the general framework established by the CJEU allows for the development of fair and workable procedural standards guiding the enforcement of SEPs and the possible competition law defence in Europe. In addition, the chapter tries to identify and specify the fundamental considerations underpinning Huawei/ZTE. This allows us to consider whether and to what extent the CJEU’s Huawei/ZTE doctrine should be broadened beyond the realm of genuine SEPs, which lead to a dominant position of the right holder. Also some additional avenues for the solution of SEP problems (such as through further upstream regulation of the standardization process and institutions, contract law and/or civil procedural law) are briefly proposed, which should be further developed and tested in the future.
