Give us a frand: unwired planet v huawei & samsung

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give us a frand: unwired planet v huawei & samsung

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Unwired Planet v Huawei: FRAND terms and rate

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Don't have an account? Sign in via your Institution Sign in. Purchase Subscription prices and ordering Short-term Access To purchase short term access, please sign in to your Oxford Academic account above.The case concerns patents that were declared essential to telecommunication standards developed by the European Telecommunications Standards Institute ETSI.

Standard essential patents SEPs are patents which would inevitably be infringed by operating in accordance with a standard. Since, for example, all modern smartphones must implement 4G, 3G and 2G telecommunications standards, SEPs are of great value to their holders. Already Subscribed? PDF Version. Search: Search.

Unwired Planet International Ltd v Huawei Technologies Co Ltd & Ors

Previous article The Philippine Congress passes the Competition Act that aims to safeguard fair and competitive market conditions Next article The Mexican Competition Authority imposes fines on several transportation companies for price-fixing agreements OTEZ. Share on. Access to this article is restricted to subscribers Already Subscribed? United Kingdom 1 contribution visits. Visites See documents. Home Bulletin Review Conferences. Books Glossary Authors Awards Subscriptions.

Site map Concurrences Terms of use Publish. Subscriptions Contact Newsletter.However, the Huawei v ZTE decision was incomplete in some key respects.

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As technology relies more heavily on standards-based implementations, the need for transparent, predicable and reasonable licensing becomes ever more critical.

In cellular telecommunications the efficient roll-out of 5G technology will be enhanced by licensing rules that exist today but did not when earlier technologies hit the markets. Unwired Planet reflects major progress in instructions to licensors and licensees, but some points remain open. Future courts will have to provide further clarification in order to bring about a more orderly licensing environment.

Justice Birss, who presided over both the technical and economic trials in the Unwired Planet cases, has added helpfully to the corpus of common law relating to FRAND licensing. This chapter provides perspectives of a licensing practitioner. Much literature exists already applying familiar antitrust-oriented economic analysis to the process of FRAND licensing. As a practical matter, however, competition law constructs and analysis only come into play when a licensing dispute ends up in court.

What happens in the marketplace during license negotiations, though, rarely involves a conscious application of competition economics theory. Rather, the parties will—as Unwired and Huawei did here—fight it out in hard-nosed negotiations until one of them usually the patentee seeks judicial relief. Some of the economic and pricing models might resonate with antitrust lexicology. Despite efforts to make the entire case sound like a competition law proposition, as the recalcitrant licensee is prone to do, the overlap of competition and patent law here is very narrow.

Certainly, some of the most interesting and provocative analysis of the Unwired Planet judgements come from commentators who are much better versed in antitrust economics than this author. But those authors possibly are not aware, or have not considered, some of the nuances that inform how Justice Birss approached his reasoning and reached his conclusions in the two judgements.

Here is where this chapter attempts to shed additional light. Also in Part five, the author suggests the ultimate significance of the Unwired Planet judgements and evaluates other published critiques.

Unwired Planet, formerly a product company called Openwave Systems, Inc. Many other details of the arrangement were also dictated by Ericsson in the MSA.

They aggressively pursued patent licenses from Huawei, Samsung and others. Perhaps not surprisingly, the large telecoms went through the motions of meeting to discuss potential licenses.

But after months, and after multiple face-to-face and telephone meetings, none of the negotiations had made any meaningful progress. Just five months after beginning its effort to engage Huawei in serious licensing discussions, Unwired Planet, Inc.

But the larger companies miscalculated. By earlyit was clear to Unwired that Huawei and Samsung had no intention of paying a license fee unless they were compelled to do so. The High Court acted with its typical efficiency. Infringement and validity for the six patents in suit were to be litigated over the course of five trials beginning in October and July By earlyafter three of the trials, Unwired had won two and lost one trial; of the four patents considered in the trials, two were found valid and infringed, and two were found invalid.

It was decided that there was a sufficient record, with wins on two of the SEPs in suit, to proceed to the economic trial without the need to litigate additional technical trials. Samsung and Huawei agreed to take the two remaining technical trials off calendar.

Not long after the closing of the Unwired Planet-PanOptis transaction, Samsung settled with Unwired Planet in Julyleaving Huawei as the sole remaining defendant in the economic trial. On 5 AprilMr. Unwired Planet, as the holder of SEPs, is in a dominant position for purposes of applying competition law. The 7 June judgement the Unwired Planet II is best described as a settling of accounts on open points related to matters resolved in the Unwired Planet I judgement.

First, the court confirmed its ruling that Unwired Planet was entitled to an injunction unless Huawei entered the form of license as ordered by the court in April. These three interrelated issues and their sub-parts are explored in the following subsections.

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Practically speaking, straightforward answers to this question and its component parts will guide negotiations normatively. Licensors and their counsel realize that failed negotiations likely will land the parties in court, where a judge will apply tests of fairness, reasonableness, and non-discrimination to the parties conduct.

Assuming that parties want their conduct to be adjudged as reasonable, they will follow rules that are clearly stated.Crucially for patent holders, the courts also upheld that subjecting an implementer to an injunction was justified, if the implementer did not accept a global licence as FRAND.

Unwired Planet v Huawei & Samsung: Samsung given permission to appeal strike out

In its initial stages, Unwired Planet accused Samsung and Google, as well as Huawei, of infringing the patents. Ground Two was based on the previous settlement between Unwired Planet and Samsung, wherein Huawei argued that its global royalty rate was higher than that offered to Samsung and therefore failed the non-discriminatory criteria required. However, this was was rejected, with the Court of Appeal ruling that this was not in contravention of EU Competition Law and therefore non-discriminatory.

Rather, it was intended to avoid accusations of dominance. The telecommunications company has announced its intention to appeal to the Supreme Court directly.

As a result of the High Court decision, SEP holders can hope to obtain a binding licence with global validity at London patent courts in the future. In Germany, the dispute between Unwired Planet and the three mobile phone companies continues. One of the six patents was recently confirmed by the German Federal Court of Justice with amended claims. In the meantime, Google, Samsung and LG have reached an agreement with the patent holder.

However Huawei and HTC continue to put up a fight. So far, there has not been a final judgment in any of the German infringement suits. Currently it is not possible to foresee what impact the London ruling will have on the German proceedings. Experts in London and Europe believe it will strengthen the position of the London patent courts as SEP owner-friendly. So far, the patent courts there have tended to be more sympathetic to defendants. Moreover, patent litigation concerning SEPs has become more difficult in Europe in recent years.

The European Commission is taking a closer look at whether SEP holders are abusing their dominant position in the market to file for injunctions. As a result, the European Court of Justice set out clear rules for such motions in the Huawei v. ZTE case in Verhauwen sees the decision from London as SEP owner-friendly in several respects.

With the Unwired Planet v Huawei case lasting four and a half years, however, some patent experts doubt whether the British patent courts are attractive for SEP holders.Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

4iP Council Webinar - UK Court of Appeal ruling Huawei v Unwired Planet

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Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq.This action started in April when Unwired Planet sued Huawei together with Google and Samsung for infringement of six patents, five of which were claimed to be essential. The cases with Google and Samsung settled but Huawei and Unwired Planet failed to come to an agreement.

Rather than try to deal with all issues in a single trial, the dispute was split into its issues with a technical trial to determine the validity, infringement and essentiality of each of the patents followed by a non-technical trial to determine the FRAND and competition issues, injunctive relief and damages for past infringements.

Only three of the technical trials were held, with two of the patents held valid and infringed, and this judgment concerns the non-technical trial.

We have previously reported on the technical trials and copies of those articles are available here and here. In this case he went a step further and held that the court could also decide whether certain terms need to be adjusted in order to make a given set of terms FRAND. Once the court has decided what the FRAND terms are for a particular set of circumstances then an implementer i.

give us a frand: unwired planet v huawei & samsung

However, an implementer who makes an unqualified commitment to take a licence on FRAND terms cannot be the subject of a final injunction to restrain patent infringement. The judge decided that both methods were wrong but that using the simpler and more transparent HPA method and adjusting the results was the right way to reach a conclusion.

The HPA method consisted of the following steps:. The list was de-duplicated. The families were collected into five groups. Only group 1 was selected for further analysis. The five groups were:. Group 1 — at least one issued and non-expired patent and an English or Chinese language member. Group 2 — at least one issued and non-expired patent but no English or Chinese language member.

This was also based on the standards to which they were declared. The review took about 30 minutes per family. The patent and relevant standard were selected in accordance with given rules. The claims of the patent were compared to the relevant standard specification to determine if the standard required all the elements of the claims. If the Evaluator determines that the specification does not provide a clear reason to rule out the patent as being essential, then the family is deemed essential.

If the family provides a clear reason to rule out the patent being essential, the family is deemed not essential. The given rules are:. Patents in the family are reviewed in the following order until a patent is deemed essential or the categories are exhausted.

If multiple patents are in the categories then the earliest is looked at first. The categories are:. English-language expired patent or subsequently English language application where there is no English language or Chinese language issued non-expired member but there are members from other jurisdictions that are issued and not expired.

For each family both representative handset and infrastructure claims are identified. He therefore held that mid-way between half of and double was the correct number.

give us a frand: unwired planet v huawei & samsung

A point to note is that all valid patents in a given category are treated as of equal value. This affected the calculation of the percentage to be allocated.Panoptis, the parent company of Unwired Planet, and Huawei have reached a settlement which ends their litigation in the US and Germany.

But the high-stakes patent dispute came to an early end before Germany's highest court could release its decision. The UK Supreme Court is still able to decide on the case. According to sources close to Unwired Planet and Huawei, the parties have recently reached a settlement. The intensive talks between Panoptis, the parent company of the NPE, and Huawei became public knowledge at the end of January.

Now it seems the parties have reached a conclusion. The two opponents have apparently agreed to end their patent disputes in the US and Germany. These include the dispute between non-practising entity Unwired Planet and Huawei in Germany. According to other sources, other claims at lower courts have also been withdrawn. The editorial team did not receive a response from their requests to Panoptis and Huawei. The Supreme Court has not received such an application.

If an application is received, it will be for the justices to decide how the Court should proceed and whether a judgment will still be issued. Almost three years on, the case in London is at an advanced stage. The Supreme Court heard the case in Novemberwith a verdict expected at the beginning of The UK Supreme Court judges had to examine whether a UK court may order a licence on the basis of a UK patent in conjunction to setting a licence rate.

The judgment was largely upheld by the Court of Appeal. Sources have confirmed to JUVE Patent that the judges are indeed expected to release a judgment in the case. However, it is unclear when the Supreme Court judges will decide on the case. However, the late Henry Carr rejected these suggestions at the High Court. The reasoning was that the case concerns UK patents and is thus untenable on Chinese terms, despite the appellants advocating for a separate UK infringement judgment.

The Court of Appeal upheld the decision. Now the settlement means that, under German law, the court no longer has the authority to decide on the issues at stake. But two more cases are still pending before the court in Karlsruhe. The case between Sisvel and Haier is likely to produce the first verdict. In Aprilthe court ruled that Huawei infringed the Unwired Planet patent.

According to the court, Unwired Planet does not have the full right to claim damages. During the seven years of litigation, both Unwired Planet and Huawei have held firm to their teams. Co-author: Amy Sandys.


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