Parallels and Diverging Approaches in the UK and German Supreme Courts’ Decisions on FRAND

In this paper, I discuss the German Federal Court of Justice’s decision in Sisvel v. Haier and the UK Supreme Court decision in Unwired Planet v. Huawei as well as Huawei and ZTE v. Conversant Wireless. I identify three levels at which the different decisions intersect. The German and UK Supreme Courts have adopted converging approaches to individual topics of controversy, such as portfolio licensing and non-discrimination. Nevertheless, the different courts’ decisions reflect a fundamentally different interpretation of the meaning of the Fair, Reasonable, and Non-Discriminatory (“FRAND”) licensing obligation. While the UK Supreme Court validated the decisions of English courts to determine FRAND royalties for the licenses under dispute, the German Federal Court of Justice gave priority to bilateral negotiations as the primary means for setting licensing terms and conditions. At the same time, the different cases share a common recognition of increasing Chinese influence over global SEP licensing disputes, challenging the delicate balance between the rights and interests of patent holders and implementers. While both decisions strengthen the position of SEP holders in light of these challenges, the Sisvel v. Haier decision provides a more suitable template for a balanced and market-driven European approach to FRAND.

By Justus A. Baron¹

I. INTRODUCTION

Long-standing discussions in Europe regarding the licensing of Standard Essential Patents (“SEPs”) o