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The UK high court to determine FRAND rates for standard essential patents

 

07 November 2016

Unwired Planet v Huawei Trial Begins

The 8-week Non-Technical trial of Unwired Planet v Huawei1 has begun. This is the fourth trial concerning Unwired Planet’s (UP) attempts to enforce its Standard Essential Patents (SEPs) against Huawei. In March 2014, UP sued Huawei, Google, and Samsung for infringement of a number of patents. The UK High Court split the litigation into six separate trials: five to determine the validity and/or infringement of the patents, and one, the current trial, to determine whether UP’s proposed licenses meet FRAND (Fair, Reasonable, and Non-Discriminatory) obligations or whether Unwired Planet has violated competition law.2

The current trial concerns the terms by which Unwired Planet seeks to license its patents which were acquired from Ericsson in early 2013. Shortly after UP acquired these patents it began licensing endeavours and sought a license from Huawei. Ericsson was previously involved in the litigation but has since settled, and UP’s cases against Google and Samsung have also settled.3 The settlement with Samsung came on the eve of this trial – in August 2016 – and the resulting license has been disclosed in the litigation and is championed by Huawei as a comparable license.

This trial will be the first time the UK High Court examines FRAND licensing in any detail. It will also be an opportunity for further consideration of the European Court of Justice’s (ECJ) July 2015 judgment of Huawei v. ZTE4. That decision laid out a framework for negotiations between parties seeking to license SEPs but left many questions unanswered which the courts are now grappling with.

If you would like to receive regular updates regarding this trial please contact lucy.rao@allenovery.com.


1 Case Ref: HP-2014-000005.

2 The technical trials were referred to as trials A, B, C, D, and E. Mr Justice Birss presided over each of the trials and found the patents infringed in technical trials A and C whereas in technical trial B the patents were deemed invalid as obvious. Technical trials D and E have been stayed by agreement of the parties. The parties have appealed the decisions in trials A, B, and C, and these appeals will be heard in March, October, and November 2017, respectively.

3 Google has settled all of its claims, save in relation to the single non-SEP which is the subject of trial E.

4 Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH (Case C-170/13) (http://curia.europa.eu/juris/documents.jsf?num=C-170/13).

 

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