SEP Licensing After two Decades of Legal Wrangling: Some Issues Solved, Many Still to Address

23 Pages Posted: 2 Apr 2020 Last revised: 29 Mar 2021

See all articles by Damien Geradin

Damien Geradin

Tilburg Law and Economics Center (TILEC); Geradin Partners; University of East Anglia (UEA) - Centre for Competition Policy; University College London - Faculty of Laws

Date Written: March 3, 2020

Abstract

This paper explores where we stand after two decades of European Commission investigations, substantial patent litigation in national courts, and a major judgement of the Court of Justice of the European Union devoted to SEP licensing and its relationship with EU competition law. As will be seen, while consensus has been reached over several issues, a lot remains to be done. This paper is divided in four parts. Part II describes the issues that have been addressed, albeit not always satisfactorily, by competition authorities and courts over the past years. Part III discusses some of the SEP licensing issues that still largely need to be solved with a focus on six questions: (i) what is the nature of the FRAND commitment?; (iii) what is a FRAND license?; (ii) should the gaps left by the CJEU in Huawei v. ZTE be filled and if so how?; (iv) can a court that finds that local SEPs have been infringed force the infringer to take a global license on pain of an injunction?; (v) access for all v. license to all: What are the obligations of the SEP holder?; and (vi) how should SEP licensing adapt the IoT context? Part IV concludes.

Keywords: standard-essential patents, SEPs, licensing, hold-up, hold-out, injunctions, patent litigation, FRAND, SEP valuation, automotive supply chain, Internet of Things, patent pools.

JEL Classification: K21, K41, L24, L40, L62, L63, L96

Suggested Citation

Geradin, Damien, SEP Licensing After two Decades of Legal Wrangling: Some Issues Solved, Many Still to Address (March 3, 2020). TILEC Discussion Paper No. DP2020-040, Available at SSRN: https://ssrn.com/abstract=3547891 or http://dx.doi.org/10.2139/ssrn.3547891

Damien Geradin (Contact Author)

Tilburg Law and Economics Center (TILEC) ( email )

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Geradin Partners ( email )

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University of East Anglia (UEA) - Centre for Competition Policy ( email )

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University College London - Faculty of Laws ( email )

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