Injunctive relief in FRAND disputes in the EU: Intellectual property and competition law at the remedies stage

Larouche, Pierre and Zingales, Nicolo (2017) Injunctive relief in FRAND disputes in the EU: Intellectual property and competition law at the remedies stage. In: The Cambridge Handbook of Technical Standardization Law: Competition, Antitrust, and Patents. Cambridge University Press, pp. 406-438. ISBN 9781316416723

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In dealing with applications for injunctive relief by the holders of FRAND-encumbered SEPs in the course of protracted licensing negotiations, any legal system faces the challenge of reaching the proper balance between predictability for stakeholders and differentiation between possible scenarios (tough negotiations, holdup, holdout or exclusion). In the EU, that challenge fell to be addressed first under the various national laws concerning remedies for intellectual property violations, as partially harmonized by Directive 2004/48. The outcome was not optimal. After German courts introduced competition law in the equation in Orange Book, the European Commission felt compelled to intervene with a different approach in Motorola and Samsung, leading to a reference to the CJEU in Huawei v ZTE. That ruling sets out an elaborate choreography that SEP holder and implementer must respect, in order to avoid breaching Article 102 TFEU or avert injunctive relief, respectively. Huawei represents a satisfactory compromise in practice, but its theoretical foundation in competition law is not solid. Subsequent case-law has unmoored Huawei from competition law and is turning it into a stand-alone lex specialis for injunctions in FRAND cases. In the longer run, legislative intervention might be preferable to de facto harmonization via competition law.

Item Type: Book Section
Keywords: Competition law; Injunctive relief; Licensing negotiations; Europe; Harmonization; Holdup; Holdout; Exclusion; France; Germany; United Kingdom; Italy; Netherlands
Schools and Departments: School of Law, Politics and Sociology > Law
Research Centres and Groups: Centre for Research in Opera and Music Theatre
Depositing User: Nicolo Zingales
Date Deposited: 26 Feb 2018 09:45
Last Modified: 26 Feb 2018 09:45

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