Unwired Planet v Huawei: Ten things you need to know about the seminal FRAND judgment

05.04.2017

This morning in London the High Court released its highly anticipated, and likely to be somewhat controversial, judgment in Unwired Planet v Huawei.
Video: Bristows discusses key points in Unwired Planet v Huawei judgment
Bristows’ TMT team – winners of the Legal 500 TMT Law Firm of the year 2017 and the Legal Business TMT Team of the year 2017- explains below the key immediate points that you need to know:
1. The English Court can and will set a FRAND rate and licence terms

2. Failure to accept the Court’s FRAND terms may result in an injunction (for an implementer) or refusal to grant an injunction (for an SEP owner)

3. There is only one true FRAND: There is and will only be one FRAND rate and set of licence terms between given parties in a given situation

4. A FRAND licence will likely be a worldwide portfolio licence

5. FRAND is directly enforceable without recourse to competition law

6. FRAND is a two-way street: To arrive at a FRAND deal, the patentee
must not hold up (effectively refusing to license) nor must the licensee hold out (effectively refusing to take a licence).

7. Offers made during negotiations do not all have to be FRAND: Both parties need to follow a FRAND approach, however, that still allows for ‘non-FRAND’ opening offers that leave room for negotiation upwards or downwards towards an eventual FRAND licence

8. Non-Discrimination: The ND in FRAND doesn’t mean a licensee is necessarily entitled to demand the same licence terms as another similarly positioned licensee

9. What is a FRAND rate?: A FRAND rate can be determined from relevant pre-existing comparable licences and by a ‘top down’ analysis which calculates a patentee’s share of total relevant essential patents

10. And the answer was… For the particular facts before him, Mr Justice Birss concluded that FRAND rates for a worldwide licence of UP’s essential patents would be:
Major Markets royalty rate Assumed no of UP’s
relevant essential patents
2G/GSM 0.064% 2
3G/UMTS 0.032% 1
4G/LTE 0.052% 5

James Boon

Author