1. Huawei – broader context and implications
Juha Vesala
Post-doctoral researcher
University of Helsinki
NIR 2016
Copenhagen, 20 June 2016

2. Approach and logic of Huawei
Exercise / exceptional circumstances paradigm continued: standard-setting context represents exceptional circumstances distinct from previous ones identified by CJEU
Indispensability of SEPs for product market competition
FRAND licensing commitments given in exchange of SEP status and creating legitimate expectations
In this context, seeking injunctive relief can be abusive to the extent FRAND license refused due to concerns about product market becoming reserved to SEP holder
Effective legal remedies cannot be denied, but SEP holder's FRAND commitment justifies the imposition of preconditions for non-abusive enforcement

3. Applicability to SEPs in other situations
CJEU's reasoning addresses exclusion from product market by SEP holder that is active on it – does not explicitly cover injunctions in other settings (e.g. NPEs and situations where foreclosure concerns are not major)
However, the generally formulated steps imposed on SEP holders would seem to address these situations quite broadly
Assessment of other abuses (e.g. excessive royalties) could also be influenced by the framework established for negotiations

4. Implications beyond SEPs?
The logic of abusiveness (indispensability and legitimate expectations) is not unique to SEPs
Comparable circumstances could be found when IPR holders give licensing commitments in other situations where IPR is indispensable for operating on a product market and the commitment contributes to the technology gaining that position
Open source licensing
Unilateral de facto standards
Comparable abuse could also be alleged when IPR holder seeks injunctive relief in a way that justifies limitation on effective remedies
SEPs that were not properly disclosed (no licensing commitment)
Attempts to exploit IP litigation system (e.g. costs of redesign and litigation)