The jurisprudence on standard-essential patents (SEPs) has evolved substantially in the last few years, particularly in the European jurisdictions, where EU courts have dealt with certain FRAND and antitrust issues in an unambiguous and novel manner. The 2015 landmark judgement in Huawei v. ZTE by the Court of Justice of the European Union brought clarity in understanding ‘unwilling licensee’ and laid down terms under which the holder of a FRAND-compliant SEP can seek injunctive relief that does not amount to an abuse of its dominant position. Four important judgements in Germany followed, where the regional courts have applied the CJEU principles laid down in Huawei and brought further clarity on the same. This paper analyzes the contentious issue of injunctive relief as a remedy for infringement of standard essential patents under FRAND licensing terms. In this direction, the first part of this paper evaluates four cases in which the EU courts granted injunctions for SEPs compliant with FRAND royalty obligations under the Huawei framework. The second half of this paper updates the reader about developments in the Indian FRAND jurisprudence, and offers an analysis, along with some suggestions.
Ashish Bharadwaj & Dipinn Verma, Failure is Not Falling Down But Refusing to Get Up: Implication of Huawei/ZTE Framework (CJEU 2015) in Europe, 17 J. Marshall Rev. Intell. Prop. L. 326 (2018)