The Legal Framework for SEP Disputes in the EU Post-Huawei: Whither Harmonization?

Summary:

This article revisits the antitrust treatment of unilateral conduct in Standard Essential Patent (SEP) disputes in the EU, with particular focus on the landmark Court of Justice of the EU (CJEU) judgment in Huawei v ZTE and the way it has affected subsequent developments before national courts.

It explains that while the court in Huawei significantly improved legal certainty both for SEP holders and their potential licensees, it also left open a number of crucial questions affecting everyday licensing practice. It follows that the space remains wide open for competing national and even regional approaches to the rights and obligations of SEP holders, calling for further European harmonization—be it judicially, legislatively, or administratively through the European Commission.

In support of the latter measures, the article illustrates the limited remit of EU private international law rules in preventing the forum shopping which is likely to unfold as a result of a fragmented landscape for the resolution of SEP disputes, and the limited ability of the Unified Patent Court to ameliorate the associated fragmentation and coordination problems.