The Power Balance Between SEP Owners and Implementers in SEP/FRAND Litigation in Europe : Analysis of Four Key Characteristics of the European Judicial Landscape

Ralph Nack

日本知財学会誌 Vol.17 No.3 p.15-26 (2021-3-20)
Journal of Intellectual Property Association of Japan Vol.17 No.3 p.15-26 (2021-3-20)

<Abstract>
This article analyzes the following four key characteristics of the European judicial landscape which heavily impact the power balance between the owners of standard-essential patents (“SEPs”), and the implementers, respectively, in SEP-related litigation.

・ Procedural restrictions regarding the judicial enforcement of SEPs.
・ Material definition of a “fair and reasonable” licensing practice.
・ Material definition of a “non-discriminatory” licensing practice.
・ The question whether courts are prepared to determine what a fair, reasonable and non-discriminatory (“FRAND”) licensing rate in a particular case is.

The SEP owner is currently in a quite powerful position in Germany and the UK.　However, this may change if the request for a preliminary ruling of the CJEU in Nokia v. Daimler proceeds.　Due to this CJEU referral, it also seems to be a high risk strategy to restrict availability of licenses to the OEM level (“Nokia v. Daimler issue”).
When starting a new SEP litigation campaign, the UK might be the preferable forum, as the court will calculate and set a FRAND rate, leading to a strong precedent for future cases in other jurisdictions.　In contrast, the German jurisdiction might be the more efficient venue to run bulk litigation in established SEP licensing/monetization programs.

<Keywords>
FRAND, SEP, Litigation, Europe, Implementer