1. The ECJ's Huawei/ZTE judgment (C-170/13) Thomas Kramler DG Competition, European Commission (The views expressed are not necessarily those of the European Commission)
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2. Overview of EU patent litigation
Source: Kühnen & Claessen, Die Durchsetzung von Patenten in der EU, GRUR 2013, 592

3. SEP-based injunctions
Examples for diverging views in national courts
Contractual rights for 3rd parties from FRAND commitment?
DE: (-); NL: no licence but pre-contractual good faith
Applicable law?
For ETSI standard: DE: German law; NL: French law
Proportionality/equity test for injunctions
UK: (+); DE: (-); NL: abuse of right test
Application of competition law?
DE: (+) "Orange Book"; NL (-); FR (?)

4. FRAND Defences-UPC ARTICLE 32 UPC AGREEMENT Competence of the Court
(1) The Court shall have exclusive competence in respect of:
(a) actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences;
ARTICLE 24
Sources of law
(1) In full compliance with Article 20, when hearing a case brought before it under this Agreement, the Court shall base its decisions on:
(a) Union law, including Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/20121;[…]
(e) national law.

5. Huawei/ZTE judgment (Facts)
March 2013, request for a preliminary ruling under Article 267 TFEU from the Landgericht Düsseldorf
Under which condititions are SEP-based injunctions anti-competitive ?
One LTE patent
2 competitors in the downstream product market

6. SEPs and market power SEPs may mean market power
Commercial indispensability of standard
Lock-in to standard
May mean market power which would not have existed absent the standard
Depends on ex ante alternatives

7. Huawei/ZTE judgment
Exercise of IP right cannot in itself constitute an abuse of a dominant position, only in exceptional circumstances (paras 46 and 47):
Indispensability of the use of the SEP (para 49)
Legitimate expectations by third parties in accordance with FRAND commitment given to standardisation body (para 53)

8. Huawei/ZTE judgment (Process)
Notice to alleged infringer
Alleged infringer must be willing to conclude a FRAND licence
Written offer by SEP holder, specifying royalty
Written counter-offer by alleged infringer
Alleged infringer to provide security (bank guarantee/deposit)
Third party determination possible (para 68)

9. Huawei/ZTE judgment (Invalidity/Essentiality)
Alleged infringer can challenge, in parallel to the negotiations, the validity of the patents and/or the essential nature of the patents and/or their actual use, or reserve the right to do so in the future (para 69)
Damages remain available

10. Conclusion
Need to strike a balance between maintaining free competition — in respect of which primary law and, in particular, Article 102 TFEU prohibit abuses of a dominant position — and the requirement to safeguard proprietor’s intellectual-property rights and its right to effective judicial protection, guaranteed by Article 17(2) and Article 47 of the Charter (paras 42 and 59).