1. Consequences of the Huawei decision for licensing practices
Associate professor Ph.D. Inger B. Ørstavik

2. Contract law as a tool to operationalize Huawei?
ECJ (42): The application of art 102 must aim at striking a fair balance between free competition (art 102) and safeguard IPRs and the right to effective judicial protection
The threat of injunction is decisive for the bargaining power of the patent holder vs potential licensees
The concept of abuse is objective: Has the dominant undertaking used business methods that are different from those governing normal competition and thereby distorted competition?
The abuse test in Huawei resembles a pre-contractual good faith standard

3. Parallell legal regimes
Competition law: Art. 102
Pre-contractual good faith
«Exceptional circumstances»
SEP in standard set by a SSO
The FRAND obligation creates «legitimate expectations» (53)
The abuse test
Letter to alert of infringement
Specific, written offer for a FRAND license (to the willing licensee)
Licensee must diligently respond (in writing) with no delaying tactics
Two-party relationship
«legitimate expectations»
Good faith standard
«Cease and desist»
Negotiations must be real, with the intention to reach agreement (PECL art. 2:301(3))
Withdrawal from negotiations (PECL art. 2:301(2))

4. Important conseptual differences
Competition law: Art. 102
Pre-contractual good faith
Objective: prevent business methods restricting competition
Uniform application in EU/EEA
Sanctions: can dismiss the infringement injunction as unlawful
Fines, damages
Objective: Protection of legitimate expectations
Differences in national law
Uncertain whether injunction can be dismissed
Paris Appeal Court, , Ericsson vs. TCT Mobile, 3G
District Court of Hague, , Samsung vs. Apple, 3G
Contract invalidity, damages

5. The operationalized Huawei-test for abuse
Developing a formalistic test of contract terms is in line with former ECJ case law regarding other forms of abuse.
C-385/07, Der Grüne Punkt, C-52/07, STIM
The test criteria can be operationalized if seen in their legal context, i.e. contract law and pre-contractual good faith.
The competition law approach ensures a EU/EEA uniform standard.
The competition law approach is probably necessary to balance the bargaining power caused by the threat of injunction.