Blog Post

Huawei v. ZTE Revisited – German Automotive Patent Wars to Reshape SEP Litigation in Europe

15 Dec 2020

On November 26, the Dusseldorf Regional Court handed down a long awaited decision in the so-called automotive patent wars (case ID 4c O 17/19). The court referred heatedly debated questions in connection with the enforcement of standard essential patents (“SEPs”) to the Court of Justice of the European Union (“CJEU”). The detailed set of questions addresses two main issues:

1. Whether the entity selling a device (here a car) that includes a component that implements the technology protected by the SEP would be in compliance with the FRAND procedure set out by the CJEU in Huawei v. ZTE if it were to refer the SEP holder to the upstream component supplier rather than making a fair reasonable and non-discriminatory (“FRAND”) offer itself; and

2. Certain clarifications on the Huawai v. ZTE requirements regarding the timing of the steps in what is often referred to as the “FRAND dance.”

Although the outcome of an order for reference cannot be foretold, the CJEU decision is expected to be the most influential decision on FRAND licensing since the 2015 Huawei v. ZTE ruling (case ID C-170/13). It may create a more predictable framework of licensing negotiations for both SEP holders and implementers. In addition, it may encourage national courts to finally take a clear stance on the FRAND compliance of an offer in certain cases.

In this blog post we will give a short overview of the background of the current SEP battles and an outlook of the practical consequences of the CJEU ruling. 



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