What’s Next for FRAND?

A flurry of cases over the summer of 2020 from appellate courts in the United States, Germany, and the United Kingdom significantly advanced and harmonized the law around the ETSI FRAND commitment, competition or antitrust law surrounding standards-essential patents, and the jurisdictional limits of courts dealing with these. However, just when things seemed clear, in November 2020 a Duesseldorf court referred questions to the Court of Justice of the European Union on issues that had appeared to be settled. This article examines what we do know from recent decisions, and what remains to be decided.

By Laura Goold & Richard Vary¹

I. INTRODUCTION

In autumn last year the world watched the UK Supreme Court’s televised broadcast of the hearing in the conjoined cases of Unwired Planet v. Huawei, and Conversant v. Huawei and ZTE. There were rumors that the decision would be published by Christmas. Then by Easter. Then, surely, before the court’s summer break. But the waiting continued, and it was not until August 26 that the decision came down.

FRAND judgments, it appears, are like buses: you can wait ages for one, and several arrive at once. On July 23, the Federal Supreme Court in Germany published its written judgment in Sisvel v. Haier. On August 11, a United States ninth circuit panel gave its decision reversing the lower court in FTC v. Qualcomm. On August 18, the first injunction was handed down in the Nokia v. Daimler cases in Germany (with others follo