The New Landscape in FRAND Litigation

2020 marked a turning point in global FRAND litigation: three judgments by the Federal Court of Justice (Bundesgerichtshof – “BGH”) of Germany, the Supreme Court of the UK, and the U.S. Court of Appeals for the 9th Circuit respectively changed the landscape in international FRAND litigation. The three cases point to a growing transatlantic convergence and mark a step in the right direction, emphasizing the need for a balanced approach in FRAND litigation that takes into account efficient industry practices and preserves strong incentives to innovate and participate in standards development.

By Haris Tsilikas ¹

I. INTRODUCTION

2020 marked a turning point in global FRAND litigation, a field that has produced a steady stream of cases and academic contributions for more than a decade now. In particular, three judgments by the Federal Court of Justice (Bundesgerichtshof – “BGH”) of Germany, the Supreme Court of the UK, and the U.S. Court of Appeals for the 9th Circuit respectively change the landscape in international FRAND litigation.

In the new landscape, courts emphasize — and are guided by — industry practice (rather than abstract theories) in reviewing disputes between owners of standard-essential patents (SEPs) and technology users regarding FRAND (fair, reasonable and non-discriminatory) licensing terms and conditions. Courts in some of the most important jurisdictions worldwide declined to ascribe antitrust liability to common commercial pract