Huawei Technologies Co Ltd v ZTE Corp
A holder of a standard essential patent who has committed to license on FRAND terms abuses its dominance by seeking an injunction against an alleged infringer, unless it follows a prescribed negotiation process.
Facts
Huawei held a patent which was essential to the LTE telecommunications standard, and had given an undertaking to the standard setting organisation to grant licences on fair, reasonable and non discriminatory terms. ZTE, a competitor, marketed products using the standard, and negotiations for a licence failed. Huawei brought infringement proceedings in Germany seeking an injunction. ZTE argued that seeking an injunction was an abuse of a dominant position.
Legal principle
The Court of Justice held that the holder of a standard essential patent who has given a FRAND commitment does not abuse its dominant position by seeking an injunction, provided that, before bringing the action, it has alerted the alleged infringer to the infringement, and, after the infringer has expressed its willingness to conclude a licence on FRAND terms, has presented a specific written offer for a licence on such terms, specifying the royalty and the way it is to be calculated, and the alleged infringer continues to use the patent without diligently responding to that offer in accordance with recognised commercial practices and in good faith. The framework has been applied in later FRAND litigation, including Unwired Planet v Huawei.
Related cases on predatory and excessive pricing, refusal to supply and essential facilities
- AKZO Chemie BV v Commission Case C-62/86, [1991] ECR I-3359
- Alphabet Inc v Autorità Garante della Concorrenza e del Mercato (Android Auto) Case C-233/23, EU:C:2025:110
- Competition and Markets Authority v Flynn Pharma Ltd [2020] EWCA Civ 339
- IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG Case C-418/01, [2004] ECR I-5039
- Istituto Chemioterapico Italiano SpA and Commercial Solvents Corp v Commission Joined Cases 6 and 7/73, [1974] ECR 223
- Konkurrensverket v TeliaSonera Sverige AB Case C-52/09, [2011] ECR I-527
- Oscar Bronner GmbH & Co KG v Mediaprint Case C-7/97, [1998] ECR I-7791
- Radio Telefis Eireann v Commission (Magill) Joined Cases C-241/91 P and C-242/91 P, [1995] ECR I-743
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