On July 16, 2015, the European Court of Justice (ECJ) rendered its seminal decision in Huawei v. ZTE. In its decision, the ECJ provided fundamental guidance for the licensing and enforcement of standard essential patents (SEPs) that are subject to a FRAND licensing commitment (i.e., a commitment by the patent owner to license those patents on fair, reasonable, and nondiscriminatory terms). While Huawei and ZTE have settled the patent dispute that gave rise to the ECJ’s judgment, the decision left it to courts in Germany and other European countries to apply and refine the general principles laid out by the ECJ. The case law on what is known as the “FRAND defense” in injunction proceedings is evolving and remains unsettled in important areas. Since our last update (see First German Decisions Applying the ECJ’s Huawei v. ZTE Framework on Injunctions for Standard Essential Patents), there have been several important decisions in Germany, the United Kingdom, and elsewhere that have applied and interpreted the Huawei v. ZTE guidelines.
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