Unwired Planet v Huawei: A Seminal SEP/FRAND decision from the UK

Abstract

With its decision in Unwired Planet (UWP) v Huawei, Birss J has not only handed down the first major ruling on SEP/FRAND issues in England but also decided a case that poses a number of key questions in this area of the law. Well aware of this, he has drafted a thorough and extensive opinion that is likely to have a considerable impact on the development of EU law and beyond.1Inter alia, the decision discusses the legal nature of an ETSI FRAND declaration; the question whether "FRAND" is a range or a single set of licensing conditions; the procedural component of FRAND; the existence of a qualified "unFRANDliness"-threshold below which competition law is not triggered; the sequencing of negotiation and litigation over FRAND licences; hard-edged vs. soft-edged discrimination; the role of "comparables" for calculating FRAND; and the anti-competitiveness of offering a mixed portfolio of SEPs and non-SEPs.

Free and Open Source Software and FRAND‐based patent licenses

“…In fact, the actual situation of the particular licensee seeking to rely on FRAND licensing terms can determine the understanding and definition of non‐discrimination (Picht, GRUR Int. , p. 572).…”

Patent Assertion Entities and Legal Exceptionalism in Europe and the United States, a Comparative View

“…This being said, limitations on the transferee's conduct can arise from a FRAND commitment made by the prior patent owner, as the German courts state very clearly that competition law is violated where a transferee asks for licensing conditions above a FRAND level or discriminates among implementers [56][61] [62]. British case law seems to take, for the time being, a slightly different turn as Birss J. holds in Unwired Planet v. Huawei, which involved SEPs transferred to a PAE by an operating company, that only substantial deviations from FRAND royalty levels amount to a violation of European competition law [63] [64]. The key question is where to draw the line beyond which FRAND transgressions become anticompetitive.…”