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Huawei vs. ZTE (ECJ)

ECJ, Judgment of July 16, 2015 - C-170/13

Law applied: AEUV Art. 102; EU-Grundrechte-Charta Art. 17 Abs. 2, Art. 47; Richtlinie 2004/48/EG zur Durchsetzung der Rechte des geistigen Eigentums Art.9, 10 Abs. 1; EPÜ Art. 2 Abs. 2, Art. 64 Abs. 1 und 3; deutsches PatG § 139 Abs. 1; BGB § 242; GWB §§ 19, 20

Summary of the Court:

1) Art. 102 TFEU is to be interpreted as meaning that the holder of a patent essential to a standard standardized by a standardization organization who has irrevocably undertaken vis-à-vis that organization to grant a license to any third party on fair, reasonable and non-discriminatory terms (so-called FRAND terms), does not abuse its dominant position within the meaning of this provision by bringing a patent infringement action to stop the infringement of its patent or to recall the products for the manufacture of which this patent was used, if

  • he has, on the one hand, informed the alleged infringer of the patent infringement of which he is accused before filing the action, identifying the patent in question and stating how it is alleged to have been infringed, and, on the other hand, after the alleged infringer has expressed his will to conclude a license agreement on FRAND terms, has submitted to the infringer a concrete written license offer on these terms and, in particular, has indicated the license fee and the way in which it is to be calculated, and
  • such infringer, while continuing to use the patent in question, fails to respond to such offer with diligence, in accordance with accepted business practices in the relevant field and in good faith, which is to be determined on the basis of objective considerations and implies, inter alia, that delaying tactics are not being pursued.

2) Article 102 TFEU must be interpreted as not precluding an undertaking in a dominant position, which is the proprietor of a patent essential to a standard standardized by a standardization organization and which has undertaken vis-à-vis the standardization organization to grant licences for that patent on FRAND terms, from bringing an infringement action against the alleged infringer of its patent, in circumstances such as those of the main proceedings, for an accounting of past acts of use in relation to the patent or for damages in respect of those acts.

ECJ, Judgment of July 16, 2015 - C-170/13

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