Standard-Essential Patents: Frand Commitments, Injunctions and the Smartphone Wars

"In 2013, in the case of Huawei Technologies v ZTE, the Regional Court of Düsseldorf (Landgericht Düsseldorf) referred a number of questions to the Court of Justice (ECJ). In particular, it asked the ECJ whether and, if so, when it might constitute an abuse of a dominant position contrary to Article 102 TFEU for a patent holder, in this case the holder of a standard-essential patent (SEP) which had given a commitment to license that SEP to any third party on fair, reasonable and non-discriminatory (FRAND) terms, to seek an injunction against a potential licensee alleged to be infringing the patent. The case raises a number of difficult issues for resolution at the interface of antitrust and patent law, and especially the question of whether and, if so, when it is legitimate for competition law to encroach on exclusive patent rights."