Three months have gone by since the Huawei v ZTE judgment. Having considered the judgment on behalf of both licensors and licensees, I find myself wondering if my views have changed, compared to when the judgment was first handed down.
It was clear on initial review that the judgment was potentially more favourable for licensors than licensees. If anything, this impression has been reinforced by looking at how the judgment may work in practice: whereas licensors can avoid (most of) the obligations by not seeking injunctive relief, licensees are in the dark as to what patents may be asserted until it happens. At that point it may be too late to correct any non-compliant conduct (although that is still far from clear).
This may be a desirable or undesirable outcome depending on your market position. However, there is undoubtedly an information asymmetry which can favour the licensor.
The judgment is (at least in the recitals) also extraordinarily prescriptive in a way which has no clear legal foundation. Neither Article 102 nor the Enforcement Directive contain any basis for the imposition of such obligations on (unproven) patent infringers.
In fact, the operative parts of the judgment (i.e. the final two paragraphs) are much less prescriptive. Given the procedural autonomy of national courts, the detailed provisions in relation to matters such as provision of security may well become a matter of national judicial discretion.
For those who would like to read more, an article (here) we have written on the judgment has been published in Competition Law Insight.