{"id":49567,"date":"2024-12-02T11:18:23","date_gmt":"2024-12-02T10:18:23","guid":{"rendered":"https:\/\/www.studiotorta.com\/?p=49567"},"modified":"2024-12-02T11:49:19","modified_gmt":"2024-12-02T10:49:19","slug":"the-unified-patent-court-and-the-frand-dance","status":"publish","type":"post","link":"https:\/\/www.studiotorta.com\/en\/the-unified-patent-court-and-the-frand-dance\/","title":{"rendered":"The Unified Patent Court and the FRAND Dance"},"content":{"rendered":"
A New Era for SEP Litigation in Europe?<\/strong><\/h6>\n

The Unified Patent Court<\/strong> (UPC<\/strong>) has made a notable debut, with a significant number of cases. The judges are dedicated to issuing <\/span>first-instance decisions within twelve months for most of those <\/span>cases. However, the expected surge of lawsuits in the realm of <\/span>standard essential patents<\/strong> (SEPs<\/strong>) has not occurred. Despite this, <\/span>SEP-related proceedings still account for a considerable portion of <\/span>the pending patent infringement cases before the UPC.<\/span><\/p>\n

A central issue in these proceedings is how the UPC will address the <\/span>determination of fair, reasonable, and non-discriminatory (FRAND) <\/span>terms for SEP licenses. National courts have extensively debated <\/span>what constitutes fair and reasonable behaviour during SEP license <\/span>negotiations, often referred to as the “<\/span>FRAND dance<\/span><\/strong>“. Any deviation <\/span>from this established \u201c<\/span>choreography<\/span>\u201d can have significant <\/span>consequences in infringement proceedings.<\/span><\/div>\n
<\/div>\n
An intriguing question is: whether the UPC will establish global <\/em><\/span>FRAND rates?<\/em>\u00a0German courts have consistently declined to do so, <\/span>arguing that they are not equipped to determine the appropriate <\/span>price for a FRAND license. This position is shared by the judges now <\/span>serving both national proceedings and in local divisions of the UPC.<\/span>
It remains to be seen if they will adopt a different approach in the <\/span>new UPC environment with respect to the national one. <\/span>In contrast, courts in the US, China, and the UK have shown less <\/span>restraint on this matter. They have set FRAND license rates, with the <\/span>UK High Court and Supreme Court even autonomously setting a <\/span>global FRAND rate in the Unwired Planet v. Huawei case. Chinese <\/span>courts have also set global FRAND rates, asserting their jurisdiction <\/span>to grant worldwide FRAND licenses.<\/span><\/div>\n
\n


A recent series of lawsuits in the UK, Germany (national court) and <\/span>before the Mannheim Local Division of the UPC, involving Panasonic,<\/span>
Xiaomi and Oppo, was closely followed because of the possibility of <\/span>FRAND conditions being established for the first time. However, the<\/span>
in this sense the case was settled before a decision on FRAND <\/span>conditions was taken by one of the involved courts, leaving the <\/span>matter open.<\/span>
In detail, the local Mannheim Division prematurely dismissed Oppo’s <\/span>counterclaim concerning the determination of FRAND rates in the <\/span>patent infringement proceedings between Panasonic and Oppo. In <\/span>the relevant decision, the Mannheim Local Division finally indicated<\/span>
that it might agree to determine FRAND conditions if linked to an <\/span>action for infringement of a SEP patent but does not see any room<\/span>
for detached actions to determine FRAND conditions.<\/span>

The UPC considers itself responsible for FRAND licenses<\/strong> only within <\/span>its member states or for countries where the asserted European <\/span>patent is validated. It cannot force parties to conclude a license at <\/span>the FRAND rates it sets. The only consequence for a SEP patentee refusing to conclude a FRAND license at the UPC’s terms would be the denial of a corresponding injunction in parallel patent infringement proceedings. As the UPC continues to navigate these turbulent waters, the first decisions on SEP-related cases are expected soon (hopefully within the end of the year). These decisions will likely influence the number of SEP-related cases brought before the UPC in the future<\/span><\/p>\n

<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

A New Era for SEP Litigation in Europe? The Unified Patent Court (UPC) has made a notable debut, with a […]<\/p>\n","protected":false},"author":1,"featured_media":49568,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[593,891],"tags":[1121,1122,591,675,677],"class_list":["post-49567","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insights","category-up-upc-en","tag-frand-dance","tag-seps","tag-studio-torta-en","tag-unified-patent-court","tag-upc-en"],"_links":{"self":[{"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/posts\/49567","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/comments?post=49567"}],"version-history":[{"count":5,"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/posts\/49567\/revisions"}],"predecessor-version":[{"id":49576,"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/posts\/49567\/revisions\/49576"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/media\/49568"}],"wp:attachment":[{"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/media?parent=49567"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/categories?post=49567"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.studiotorta.com\/en\/wp-json\/wp\/v2\/tags?post=49567"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}