Unwired Planet v Huawei: The First UK FRAND Determination

Unwired Planet v Huawei: The First UK FRAND Determination Key Points In Unwired Planet v Huawei, the High Court of England and Wales has for the first time determined a FRAND royalty rate for a licence of a portfolio of standard essential patents (‘SEPs’). The Court held that Unwired Planet did not abuse its dominant position by seeking an injunction prematurely, by seeking to insist on a worldwide licence, by attempting to impose unfair prices or by bundling SEPs and non-SEPs. Deviating from the Court of Justice’s Huawei v ZTE ruling (2015), the Court granted an injunction against Huawei who did not have a licence for certain of Unwired Planet’s SEPs which were found to be valid and infringed. On 5 April 2017, the High Court of England and Wales (the ‘English Court’) delivered its judgement on the ‘non-technical’ aspects of Unwired Planet v Huawei.1 This is the first decision of the English Courts that determines a FRAND rate for a licence of a portfolio of SEPs. The judgement offers crucial guidance on the law surrounding standardised technology, including the relevance of competition law, and will no doubt influence similar cases across the EU and further afield. This article will set out the background to the proceedings, summarise the key findings of the judgement and comment on the role of competition law in FRAND disputes in the future. I. Background A. Standardisation and FRAND The process of standardisation involves defining technical or quality requirements with which current or future products, production processes, services or methods may comply. This arises in many fields, including the telecommunications sector in which particular product and technical specifications are required to ensure compatibility and interoperability between the products of different manufacturers. For example, a standard has been developed for each of the ‘generations’ of mobile technology: 2G, 3G, and 4G. The European Telecommunications Standards Institute (‘ETSI’) is the organisation responsible for standards development in the telecommunications industry in Europe, and the 2G, 3G, and 4G standards developed by ETSI are now used worldwide. The technology incorporated into a telecommunications standard is often subject to patent protection. Such patents are known as standard essential patents (‘SEPs’). The inclusion of patented technology in a standard can give rise to problems where an SEP holder prevents or restricts the use of its technology and thus prevents or restricts the implementation of the relevant standard. This is known as patent ‘hold-up’. To avoid this situation, standard setting organisations require SEP holders to undertake to license those patents on fair, reasonable and non-discriminatory (FRAND) terms. The FRAND undertaking to be given by holders of SEPs reading onto the 2G, 3G, and 4G standards is included in the ETSI IPR Policy. This Policy was developed with the requirements of competition law in mind, and with the oversight of the European Commission. While there remains some debate over the exact balance to be struck between the interests of patentees and implementers, it is generally accepted that the FRAND undertaking seeks to strike a balance between rewarding SEP holders for their innovation and allowing implementers proper access to standardised technology.2 For SEP holders, there has been considerable uncertainty as to when, and how, they can enforce their SEPs against implementers who have not taken a licence without breaching their FRAND obligation, particularly when seeking an injunction. This uncertainty can increase the risk of patent ‘hold-out’, where implementers may refuse to take a licence because, amongst other reasons, the likelihood of enforcement may be small. The European Commission investigated Samsung3 and Motorola4 in 2014 in relation to their enforcement of SEPs. These investigations demonstrated that the use of injunctions by SEP holders under a FRAND obligation against willing licensees can be anticompetitive. Further, on 16 July 2015, the European Court of Justice (‘CJEU’) handed down a significant judgement in Huawei v ZTE5 which offered some guidance as to how SEP holders should approach FRAND negotiations and when injunctions may be available. The judgement sets out practical steps that both SEP holders and implementers should take in FRAND negotiations. However, these cases do not deal with how a FRAND royalty rate or licence terms should actually be determined. In Unwired Planet v Huawei, the English Court has made a FRAND determination for the first time, and offered crucial guidance on how the law in this area will be applied in practice. B. Background to the Unwired Planet litigation Unwired Planet (‘UP’) is a non-practising entity (NPE, sometimes referred to as a ‘patent troll’). In 2013, UP acquired over 2,000 patents from Ericsson and just over a year later sued Samsung, Google, and Huawei in the UK (and in parallel in Germany) for patent infringement of six of those patents, five of which were declared essential to various telecommunications standards. The subject of this article is the judgement relating to the ‘non-technical’ aspects of the proceedings. Below is a brief chronology of the proceedings to date. Jan 2013: UP acquired around 2,100 patents from Ericsson. Mar 2014: UP sued Samsung, Google and Huawei in the UK and Germany. Dec 2014: Ericsson was joined as a party to the UK proceedings for the purpose of certain competition law issues arising from the sale of its patents to UP (based on Article 101). 2015: Google settled in respect of the SEPs in suit. Nov 2015–Mar 2016: Technical trials held relating to each of the patents in suit; two of the SEPs were held to be valid and infringed, two others were found to be invalid and the final technical trial was stayed. 2016: Samsung settled and Huawei discontinued its counterclaim against Ericsson. Nov–Dec 2016: Trial of the non-technical aspects of the proceedings between the remaining parties, UP and Huawei. 5 Apr 2017: Judgement on non-technical aspects of the proceedings handed down. 19 May 2017: Post-judgement hearing. II. Summary of judgement On 5 April 2017, Mr Justice Birss handed down his judgement on the non-technical aspects of the proceedings. Below is a summary of (A) his factual findings; (B) some of his key findings relating to FRAND; (C) his calculation of a FRAND rate; and (D) his assessment of the application of competition law. A. Factual findings During the course of the proceedings, both UP and Huawei made a number of offers for what they claimed were the FRAND terms of a licence to UP’s patent portfolio. The Court, however, found that neither parties’ offers were FRAND. UP’s were too high and Huawei’s were too low.6 Instead the Court determined its own FRAND rate for a licence between the parties. Crucially, this determination proves that the English Court can and will set a FRAND rate and licence terms in proceedings relating to SEPs. The Court’s jurisdiction is not restricted to assessing whether an offer made by a party is FRAND, instead, the Court can decide between rival proposals for FRAND rates and come to a conclusion different to either party’s position. In addition, on the facts of this case, the Court found that UP did not abuse its dominant position by seeking an injunction prematurely, by seeking to insist on a worldwide licence, by attempting to impose unfair prices or by bundling SEPs and non-SEPs.7 These issues will be explored in Section D below. The Court granted an injunction as Huawei does not have a licence to certain patents which had been held valid and infringed in the separate technical trials.8 This was considered, along with a few other consequential issues, at a post-judgement hearing on 19 May 2017. B. Legal basis of the FRAND undertaking In reaching its findings, the Court made a novel, and somewhat controversial, distinction between ‘contractual’ and ‘competition law’ FRAND. The Court found that when a patent holder makes a declaration to ETSI that its patent is essential to a given standard, that declaration gives rise to a contract between ETSI and the declarant under French law. Further, that contract can be relied on by third-party implementers to enforce a right to receive a licence on FRAND terms. This means that FRAND can be enforced under contract law without recourse to competition law. The judgement therefore does not need to consider implementers’ ‘legitimate expectation’ that a licence will be available, which was the basis under which the Court of Justice considered the questions raised by the German Court in Huawei v ZTE. The judgement also finds that there is only ‘one true FRAND rate’ meaning that there is only one set of licence terms which are FRAND (on a contractual basis) between any given parties in any given situation. This conclusion has a significant practical advantage; in that it makes the enforcement of FRAND ‘conceptually straightforward’ – it avoids a court having to decide between an apparently FRAND offer made by each party. If a range of FRAND offers were possible, the Court would be placed in the position of having to choose whether to grant an injunction, because an implementer has refused to accept the SEP holder’s FRAND offer, or to decline to grant one, because the SEP holder has refused to accept the implementer’s FRAND offer. The Court also considered that its finding that there is only ever ‘one true FRAND rate’ reflects the approach advocated by both parties’ economic experts.9 The conclusion that there is only one true FRAND as between a given SEP holder and implementer does not apply only to the financial terms of the licence. Rather all licence terms are subject to the same approach, namely that true FRAND terms are unique as between a given SEP holder and implementer. This conclusion is particularly relevant to the geographic scope of the portfolio under consideration. In this case, the Court found that a FRAND licence is likely to be a worldwide portfolio licence where: (i) the SEP holder has a large global portfolio; and (ii) the implementer operates on a global basis (as was the case for UP and Huawei). Multinational implementers cannot insist on patent-by-patent or country-by-country approaches to licensing when negotiating with holders of global SEP portfolios. Importantly, this judgement does not mean that the parties to a licence for SEPs can challenge agreed terms as being non-FRAND (unless there are competition law concerns – see Section D below). Indeed, where parties agree licence terms, their rights and obligations under the ETSI FRAND undertaking are replaced by their contractual rights under the licence.10 Existing licences cannot therefore be re-negotiated on the basis of contractual FRAND. C. Calculating FRAND The judgement calculates the FRAND rate for the licence between the parties by ‘unpacking’ the terms of comparable licences to derive a benchmark rate. The ‘top-down’ approach was also used to cross-check that the total aggregate royalty burden implied by the rates calculated was at an appropriate level. The FRAND rates calculated for a worldwide licence between UP and Huawei were11:   Major markets  China and other markets  Handsets  Infrastructure  Handsets  infrastructure  2G/GSM  0.064%  0.064%  0.016%  0.032%  3G/UMTS  0.032%  0.016%  0.016%  0.004%  4G/LTE  0.052%  0.051%  0.026%  0.026%    Major markets  China and other markets  Handsets  Infrastructure  Handsets  infrastructure  2G/GSM  0.064%  0.064%  0.016%  0.032%  3G/UMTS  0.032%  0.016%  0.016%  0.004%  4G/LTE  0.052%  0.051%  0.026%  0.026%  The valuation of UP’s portfolio in the judgement is essentially conducted on an ex post basis, attributing value to the SEPs which derives from the adoption of that patented technology into the relevant standard. This approach contrasts with much of the relevant economic thinking which suggests that the assessment of the value of an SEP should be carried out ex ante, at the time that the technology was adopted into the standard, before the SEP holder has acquired market power. An ex ante approach has also been advocated in several US cases12 and by the European Commission in its Horizontal Guidelines.13 These Guidelines suggest that SEP holders should charge licence fees for the relevant patents equivalent to the fees that would have been charged in a competitive environment before the industry has been locked into the relevant standard. D. Competition law assessment As well as determining a FRAND rate for a licence to UP’s patent portfolio, the Court dealt with, and dismissed, Huawei’s claim that UP had abused its dominant position. 1. Dominance The Court found that UP held a dominant position on the basis that it had a 100 per cent market share of the market for licences under the relevant SEPs, a market definition which was not contested. However, the judgement acknowledges that, in the case of an SEP holder, dominance cannot be assumed as there can be constraints on their market power. For example, the FRAND obligation weakens an SEP holder’s position as does the risk that licensees will engage in patent hold-out.14 Nevertheless, UP was found to have held a dominant position in this case. 2. Issue proceedings prematurely The Court found that UP did not abuse its dominant position by issuing proceedings for an injunction prematurely. In particular, UP did not abuse its dominant position by failing to make Huawei an offer for the terms of a licence for its patent portfolio before commencing proceedings, as required by the framework set out in Huawei v ZTE. The Court found that it was sufficient that Huawei was aware of the existence of UP’s patents and was offered licence terms shortly after the proceedings started. Birss J held that this was ‘outside the letter of the CJEU’s scheme [in Huawei v ZTE] but only by a relatively short time’15 and that what matters is that each side makes clear that it is willing to conclude a licence on FRAND terms.16 The Court’s assessment of how parties should conduct FRAND negotiations is less prescriptive than the CJEU decision in Huawei v ZTE, and therefore in many ways more practical. This somewhat relaxed approach to interpreting the framework in Huawei v ZTE can be explained in a number of ways. First, a distinction is drawn between the legal bases for each of the claims. In Unwired Planet v Huawei, the FRAND undertaking was held to be justiciable on a contractual basis and could be enforced without recourse to competition law.17 However, the Huawei v ZTE ruling was based on an assumption that competition law was the relevant tool for enforcing the FRAND undertaking. The legal basis for that decision was that, in principle, a breach of the legitimate expectation of implementers to be granted a licence on FRAND terms could amount to an abuse of dominance, akin to a refusal to license.18 The importance of this distinction can be questioned as, whatever the basis for the FRAND obligation, the significance of the CJEU decision is that the manner in which FRAND negotiations are conducted has the potential to affect competition. The fact that the Judge accepted that the existence of the injunction request may increase the pressure on the licensee to accept the rates19 (which is essentially the basis for the Commission decisions in Motorola and Samsung) is not treated as a relevant consideration. Second, there is a distinction between the forums in which each of the claims were brought. The Huawei v ZTE decision was made in the context of German proceedings in which injunctions are normally granted before validity is tested or detailed FRAND assessments are made. In this context, ensuring proper steps are taken before an SEP holder seeks an injunction is crucial. However, injunctions in SEP cases in English Courts are normally only granted after the issues of validity and FRAND have been heard. The need for a prescriptive framework of steps to be taken before seeking an injunction is therefore arguably less important. The judgement does not explicitly reference this distinction20 but no doubt it played some role in the findings. As for future cases, the judgement makes clear that the framework laid down in Huawei v ZTE should be applied fluidly. Compliance by an SEP holder with the framework does not necessarily avoid a finding of abuse and deviation from the framework will not always be abusive – it will depend on the circumstances.21 This means that where a SEP holder fails to follow the Huawei v ZTE framework precisely, such seemingly abusive conduct can be ‘cured’, as long as the conduct does not prejudice the entire litigation. By analogy, this conclusion should also mean that an implementer which does not comply with the letter of Huawei v ZTE will not necessarily be at risk of an injunction, at least in the UK. That said, parties should think carefully before straying too far from the Huawei v ZTE framework – the Court’s findings were made on the facts of this case and it may not have been so willing to forgive UP’s failure to make an offer if the facts had differed, for example, if the defendant had been less sophisticated or the litigation had reached trial sooner. Non-compliant conduct may also of course remain high-risk if litigation takes place in the Courts of other EU Member States. Finally, as set out in Huawei v ZTE, this judgement makes clear that injunctions are available in the English Courts. If an implementer has been found to have infringed a valid patent and refuses at the end of the proceedings to take a licence on terms found by the court to be FRAND, the patentee is likely to be awarded an injunction. Equally, an injunction is unlikely to be available for an SEP holder that breaches its FRAND undertaking by refusing to accept terms determined by the court to be FRAND. 3. Unfair excessive prices The Court found that UP did not abuse its dominant position by imposing unfair excessive prices. In particular, the boundary of what is and is not a FRAND rate is different from the boundary of what is and is not an unfair price for an abuse of dominance (under Art 102(a) TFEU). Indeed, a rate can be higher than the FRAND rate without being abusive under competition law.22 On this basis, and in the context of SEPs and FRAND, the Court held that only an offer which is so far above FRAND as to disrupt or prejudice the negotiations will fall foul of competition law,23 so long as the recipient of the offer can see it is made in that context.24 For example, the worldwide 4G rate offered by UP in 2014 was around three times the benchmark rate determined by the Court; however, the Judge found that those offers were made as a step in negotiation and did not infringe competition law.25 In this respect, the judgement is arguably in line with existing EU case law. Huawei v ZTE had already established that a SEP holder would not abuse a dominant position by seeking damages. In a recent opinion relating to copyright licensing, Advocate General Wahl acknowledged that it would neither be ‘realistic nor advisable’ for competition law intervention in respect of any difference between a benchmark price and the alleged excessive price,26 and that only prices which are ‘significantly and persistently’ above the benchmark price should be deemed excessive.27 This supports the Court’s finding that only offers sufficiently above the FRAND benchmark should fall foul of competition law. Nevertheless, as noted above, the past case law practice of the European Commission has emphasised the potential negative impact of non-FRAND prices,28 and it remains to be finally established whether a separate form of abuse of dominance, through non-FRAND pricing, will be established in future. 4. Bundling of SEPs and non-SEPs UP was held not to have abused its dominant position by bundling its SEPs and non-SEPs in its first licence offer. The Court found that, at the request of Huawei, UP separated out the SEPs and the non-SEPs in its subsequent offers and therefore, this did not amount to conduct of a party trying to use its market power from SEPs to tie in its non-SEPs.29 5. Discrimination Perhaps more controversially, the Court found that UP did not abuse its dominant position by discriminating between Huawei and other similarly situated licensees. In particular, although it found (i) that Samsung and Huawei were ‘similarly situated’; (ii) that the licence which was agreed between UP and Samsung in 2016 was an equivalent or comparable transaction relevant for discrimination; it concluded that (iii) a distortion of competition between Huawei and Samsung was not established.30 The Court found that the differences in royalty rates offered to Samsung were very small percentages when expressed relative to the margins on the relevant products. That said, it did recognise that small differences in royalty rates can result in much larger differences in absolute numbers. Of considerable interest is the distinction which the judgement makes between the non-discrimination or ‘ND’ element of contractual FRAND and what was described as the ‘hard-edged’ discrimination requirement in competition law. In respect of contractual FRAND, the Court found that the ND aspect merely requires companies to take a benchmark rate approach to assessing royalties as that approach is itself non-discriminatory (i.e. an SEP holder must offer the benchmark rate to all licensees, notwithstanding their size).31 This does not, however, mean that UP must offer Huawei the same or similar rates as the 2016 UP-Samsung licence. Indeed, a licensee cannot demand a rate lower than the benchmark FRAND rate simply because another ‘similarly situated’ licensee has been offered that rate. (The converse, where a licensee is charged appreciably more than a benchmark, is more likely to be of concern.) In this case, the Judge considered that the ‘hard-edged’ discrimination arguments will only play a role where the difference in rates offered to similarly situated licensees would distort competition between the two licensees. Even if there may be cases (like the CJEU’s British Airways judgement),32 in which an inference can be drawn that competitive distortion is likely, the relationship between the royalties in this case, and the margins made on mobile handsets was such that the inference of competitive distortion was not met. In this case, the Judge found that the different rates offered to Samsung did not distort competition between Samsung and Huawei. III. Comment The Unwired Planet v Huawei judgement takes a novel, but perhaps practical, approach to the difficult questions raised in FRAND disputes by drawing a clear distinction between ‘contractual’ FRAND and ‘competition law’ FRAND. This means that an implementer can rely on the FRAND undertaking under contract law without recourse to competition law. However, it is likely that competition law will continue to play a central role in the enforcement of SEPs for a number of reasons. First, it is not straightforward to divorce the concept of FRAND from competition law in this way. Indeed, the FRAND obligation for SEPs is fundamentally a creature of competition law. Standardisation can give rise to significant pro-competitive effects, including the development of new and improved products, maintaining and enhancing quality, providing information and ensuring interoperability and compatibility. However, such agreements also give rise to restrictive effects on competition, not least because standards are typically agreed and decided by competing companies, but will need to be relied upon both by those companies and third parties. In the case of telecommunication standards, this can, amongst other things, risk leading to discrimination, the prevention of effective access to standards and/or increased prices for consumers.33 To deal with these competition law concerns, the FRAND obligation is used to prevent SEP holders from making the implementation of a standard difficult by refusing to license or by requesting unfair, unreasonable or discriminatory fees after the industry has been locked-in to the standard. In this sense, the FRAND obligation is a derogation from the Article 101(1) prohibition on anticompetitive agreements. It is therefore difficult to analyse ‘contractual’ FRAND without due consideration of the effects on competition. It will certainly be open to parties to raise such issues in future cases on SEPs and FRAND. Second, competition law can still deployed by implementers as a tool to prevent patent hold-up. Although UP was not found to have breached competition law on the facts of this case, competition law claims and defences remain open for future defendants to patent infringement claims relating to SEPs. For example, the Court acknowledged that on alternative facts it may have found that UP had abused its dominant position. For example, if UP had made an offer for the terms of a licence so far above the FRAND rate that it disrupted or prejudiced negotiations, or if UP had significantly departed from the framework for FRAND negotiations set out in Huawei v ZTE. The relevance of Article 101(1) was not raised in this case, but may be argued in future cases. Finally, the enforcement of SEPs and the corresponding FRAND obligation remains an area of significant interest for the competition authorities. The European Commission brought enforcement action against Samsung34 and Motorola35 in 2014 in relation to their enforcement of SEPs when those companies sought injunctions against Apple. The Unwired Planet judgement arguably diverges further from these cases than from the CJEU Huawei v ZTE ruling. It cannot be precluded that the Commission will again jump into this arena in order to reinforce the position it took in those earlier cases. Indeed, earlier this year, the Commission launched a consultation on the enforcement of SEPs through which it aims to create a smooth, practicable and fair market system for SEP licences. It has indicated that this will include provision of guidance on the enforcement of FRAND.36 Given the importance of the FRAND concept to future generations of mobile telephony, and to an increasingly large class of product manufacturers in the concept of the Internet of Things, it can be expected that the application of competition law to SEP-related conduct will continue to evolve. Footnotes 1 Unwired Planet International Ltd v Huawei Technologies Co. Ltd and ors [2017] EWHC 711 (Pat). 2 Case C‑170/13, Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH, 16 July 2015 (‘Huawei v ZTE’), para 12 3 Case Comp Samsung AT.39939, 29 April 2014. 4 Case Comp Motorola AT.39985, 29 April 2014. 5 Case C‑170/13. 6 Unwired Planet v Huawei [2017] EWHC 711 (Pat) (‘Unwired Planet v Huawei’), para 522, 807(1) and (2). 7 Ibid., para 627-791, 807(17). 8 Unwired Planet v Huawei, para 793. 9 Ibid., para 148. 10 Ibid., para 155. 11 Ibid., para 586, 591, 807(13). 12 See In re Innovatio IP Ventures LLC Patent Litigation Case No 11 C 9308, 2013 WL 5593609 (N.D. I11 Oct. 3, 2013) and Ericsson v D-Link 773 F.3d 1201 (Fed Cir 2014). 13 Horizontal Guidelines, para 289. 14 Ibid., para 656, 670. 15 Ibid., para 753, 755. 16 Ibid., para 738, 744(ii). 17 Unwired Planet v Huawei, para 744(viii). 18 Huawei v ZTE, para 53, 54. 19 Unwired Planet v Huawei, para 766. 20 Other than in the context of considering the earlier Orange Book case which the Court of Justice had to consider in Huawei v ZTE. See Unwired Planet v Huawei, paras 716–719. 21 Ibid., para 741, 744(v) and (vi). 22 Ibid., para 153, 757. 23 Article 102(a) prohibits an abuse of dominance which consists of ‘directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions’. 24 Unwired Planet v Huawei [2017] EWHC 711 (Pat), para 765. 25 Ibid., para 773, 781, 784, 807(17). 26 Case C‑177/16, Latvian Collecting Societies, 6 April 2017, para 102ff. 27 Ibid. 28 See for example Commission MEMO 14/322: ‘Antitrust decisions on standard essential patents (SEPs) – Motorola Mobility and Samsung Electronics – Frequently asked questions’. 29 Unwired Planet v Huawei [2017] EWHC 711 (Pat), para 790. 30 Ibid., para 488, 491, 493, 518, 807(10). 31 This does not arguably reflect the economic realities of the market as there are often legitimate reasons for offering different rates to new entrants and established market players, for example, as a result of the greater sales that can often be expected from larger players. 32 Case C-95/04 British Airways v Commission [2007] ECR I-2331. 33 Commission Guidelines on the applicability of Article 101 of the TFEU to horizontal co-operation agreements, 2011/C 11/01, (the ‘Horizontal Guidelines’), para 263ff. 34 Case Comp Samsung AT.39939, 29 April 2014. 35 Case Comp Motorola AT.39985, 29 April 2014. 36 Standard Essential Patents for a European digitalised economy, Ares (2017)1906931 – 10/04/2017. © The Author 2017. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of European Competition Law & Practice Oxford University Press

Unwired Planet v Huawei: The First UK FRAND Determination

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Abstract

Key Points In Unwired Planet v Huawei, the High Court of England and Wales has for the first time determined a FRAND royalty rate for a licence of a portfolio of standard essential patents (‘SEPs’). The Court held that Unwired Planet did not abuse its dominant position by seeking an injunction prematurely, by seeking to insist on a worldwide licence, by attempting to impose unfair prices or by bundling SEPs and non-SEPs. Deviating from the Court of Justice’s Huawei v ZTE ruling (2015), the Court granted an injunction against Huawei who did not have a licence for certain of Unwired Planet’s SEPs which were found to be valid and infringed. On 5 April 2017, the High Court of England and Wales (the ‘English Court’) delivered its judgement on the ‘non-technical’ aspects of Unwired Planet v Huawei.1 This is the first decision of the English Courts that determines a FRAND rate for a licence of a portfolio of SEPs. The judgement offers crucial guidance on the law surrounding standardised technology, including the relevance of competition law, and will no doubt influence similar cases across the EU and further afield. This article will set out the background to the proceedings, summarise the key findings of the judgement and comment on the role of competition law in FRAND disputes in the future. I. Background A. Standardisation and FRAND The process of standardisation involves defining technical or quality requirements with which current or future products, production processes, services or methods may comply. This arises in many fields, including the telecommunications sector in which particular product and technical specifications are required to ensure compatibility and interoperability between the products of different manufacturers. For example, a standard has been developed for each of the ‘generations’ of mobile technology: 2G, 3G, and 4G. The European Telecommunications Standards Institute (‘ETSI’) is the organisation responsible for standards development in the telecommunications industry in Europe, and the 2G, 3G, and 4G standards developed by ETSI are now used worldwide. The technology incorporated into a telecommunications standard is often subject to patent protection. Such patents are known as standard essential patents (‘SEPs’). The inclusion of patented technology in a standard can give rise to problems where an SEP holder prevents or restricts the use of its technology and thus prevents or restricts the implementation of the relevant standard. This is known as patent ‘hold-up’. To avoid this situation, standard setting organisations require SEP holders to undertake to license those patents on fair, reasonable and non-discriminatory (FRAND) terms. The FRAND undertaking to be given by holders of SEPs reading onto the 2G, 3G, and 4G standards is included in the ETSI IPR Policy. This Policy was developed with the requirements of competition law in mind, and with the oversight of the European Commission. While there remains some debate over the exact balance to be struck between the interests of patentees and implementers, it is generally accepted that the FRAND undertaking seeks to strike a balance between rewarding SEP holders for their innovation and allowing implementers proper access to standardised technology.2 For SEP holders, there has been considerable uncertainty as to when, and how, they can enforce their SEPs against implementers who have not taken a licence without breaching their FRAND obligation, particularly when seeking an injunction. This uncertainty can increase the risk of patent ‘hold-out’, where implementers may refuse to take a licence because, amongst other reasons, the likelihood of enforcement may be small. The European Commission investigated Samsung3 and Motorola4 in 2014 in relation to their enforcement of SEPs. These investigations demonstrated that the use of injunctions by SEP holders under a FRAND obligation against willing licensees can be anticompetitive. Further, on 16 July 2015, the European Court of Justice (‘CJEU’) handed down a significant judgement in Huawei v ZTE5 which offered some guidance as to how SEP holders should approach FRAND negotiations and when injunctions may be available. The judgement sets out practical steps that both SEP holders and implementers should take in FRAND negotiations. However, these cases do not deal with how a FRAND royalty rate or licence terms should actually be determined. In Unwired Planet v Huawei, the English Court has made a FRAND determination for the first time, and offered crucial guidance on how the law in this area will be applied in practice. B. Background to the Unwired Planet litigation Unwired Planet (‘UP’) is a non-practising entity (NPE, sometimes referred to as a ‘patent troll’). In 2013, UP acquired over 2,000 patents from Ericsson and just over a year later sued Samsung, Google, and Huawei in the UK (and in parallel in Germany) for patent infringement of six of those patents, five of which were declared essential to various telecommunications standards. The subject of this article is the judgement relating to the ‘non-technical’ aspects of the proceedings. Below is a brief chronology of the proceedings to date. Jan 2013: UP acquired around 2,100 patents from Ericsson. Mar 2014: UP sued Samsung, Google and Huawei in the UK and Germany. Dec 2014: Ericsson was joined as a party to the UK proceedings for the purpose of certain competition law issues arising from the sale of its patents to UP (based on Article 101). 2015: Google settled in respect of the SEPs in suit. Nov 2015–Mar 2016: Technical trials held relating to each of the patents in suit; two of the SEPs were held to be valid and infringed, two others were found to be invalid and the final technical trial was stayed. 2016: Samsung settled and Huawei discontinued its counterclaim against Ericsson. Nov–Dec 2016: Trial of the non-technical aspects of the proceedings between the remaining parties, UP and Huawei. 5 Apr 2017: Judgement on non-technical aspects of the proceedings handed down. 19 May 2017: Post-judgement hearing. II. Summary of judgement On 5 April 2017, Mr Justice Birss handed down his judgement on the non-technical aspects of the proceedings. Below is a summary of (A) his factual findings; (B) some of his key findings relating to FRAND; (C) his calculation of a FRAND rate; and (D) his assessment of the application of competition law. A. Factual findings During the course of the proceedings, both UP and Huawei made a number of offers for what they claimed were the FRAND terms of a licence to UP’s patent portfolio. The Court, however, found that neither parties’ offers were FRAND. UP’s were too high and Huawei’s were too low.6 Instead the Court determined its own FRAND rate for a licence between the parties. Crucially, this determination proves that the English Court can and will set a FRAND rate and licence terms in proceedings relating to SEPs. The Court’s jurisdiction is not restricted to assessing whether an offer made by a party is FRAND, instead, the Court can decide between rival proposals for FRAND rates and come to a conclusion different to either party’s position. In addition, on the facts of this case, the Court found that UP did not abuse its dominant position by seeking an injunction prematurely, by seeking to insist on a worldwide licence, by attempting to impose unfair prices or by bundling SEPs and non-SEPs.7 These issues will be explored in Section D below. The Court granted an injunction as Huawei does not have a licence to certain patents which had been held valid and infringed in the separate technical trials.8 This was considered, along with a few other consequential issues, at a post-judgement hearing on 19 May 2017. B. Legal basis of the FRAND undertaking In reaching its findings, the Court made a novel, and somewhat controversial, distinction between ‘contractual’ and ‘competition law’ FRAND. The Court found that when a patent holder makes a declaration to ETSI that its patent is essential to a given standard, that declaration gives rise to a contract between ETSI and the declarant under French law. Further, that contract can be relied on by third-party implementers to enforce a right to receive a licence on FRAND terms. This means that FRAND can be enforced under contract law without recourse to competition law. The judgement therefore does not need to consider implementers’ ‘legitimate expectation’ that a licence will be available, which was the basis under which the Court of Justice considered the questions raised by the German Court in Huawei v ZTE. The judgement also finds that there is only ‘one true FRAND rate’ meaning that there is only one set of licence terms which are FRAND (on a contractual basis) between any given parties in any given situation. This conclusion has a significant practical advantage; in that it makes the enforcement of FRAND ‘conceptually straightforward’ – it avoids a court having to decide between an apparently FRAND offer made by each party. If a range of FRAND offers were possible, the Court would be placed in the position of having to choose whether to grant an injunction, because an implementer has refused to accept the SEP holder’s FRAND offer, or to decline to grant one, because the SEP holder has refused to accept the implementer’s FRAND offer. The Court also considered that its finding that there is only ever ‘one true FRAND rate’ reflects the approach advocated by both parties’ economic experts.9 The conclusion that there is only one true FRAND as between a given SEP holder and implementer does not apply only to the financial terms of the licence. Rather all licence terms are subject to the same approach, namely that true FRAND terms are unique as between a given SEP holder and implementer. This conclusion is particularly relevant to the geographic scope of the portfolio under consideration. In this case, the Court found that a FRAND licence is likely to be a worldwide portfolio licence where: (i) the SEP holder has a large global portfolio; and (ii) the implementer operates on a global basis (as was the case for UP and Huawei). Multinational implementers cannot insist on patent-by-patent or country-by-country approaches to licensing when negotiating with holders of global SEP portfolios. Importantly, this judgement does not mean that the parties to a licence for SEPs can challenge agreed terms as being non-FRAND (unless there are competition law concerns – see Section D below). Indeed, where parties agree licence terms, their rights and obligations under the ETSI FRAND undertaking are replaced by their contractual rights under the licence.10 Existing licences cannot therefore be re-negotiated on the basis of contractual FRAND. C. Calculating FRAND The judgement calculates the FRAND rate for the licence between the parties by ‘unpacking’ the terms of comparable licences to derive a benchmark rate. The ‘top-down’ approach was also used to cross-check that the total aggregate royalty burden implied by the rates calculated was at an appropriate level. The FRAND rates calculated for a worldwide licence between UP and Huawei were11:   Major markets  China and other markets  Handsets  Infrastructure  Handsets  infrastructure  2G/GSM  0.064%  0.064%  0.016%  0.032%  3G/UMTS  0.032%  0.016%  0.016%  0.004%  4G/LTE  0.052%  0.051%  0.026%  0.026%    Major markets  China and other markets  Handsets  Infrastructure  Handsets  infrastructure  2G/GSM  0.064%  0.064%  0.016%  0.032%  3G/UMTS  0.032%  0.016%  0.016%  0.004%  4G/LTE  0.052%  0.051%  0.026%  0.026%  The valuation of UP’s portfolio in the judgement is essentially conducted on an ex post basis, attributing value to the SEPs which derives from the adoption of that patented technology into the relevant standard. This approach contrasts with much of the relevant economic thinking which suggests that the assessment of the value of an SEP should be carried out ex ante, at the time that the technology was adopted into the standard, before the SEP holder has acquired market power. An ex ante approach has also been advocated in several US cases12 and by the European Commission in its Horizontal Guidelines.13 These Guidelines suggest that SEP holders should charge licence fees for the relevant patents equivalent to the fees that would have been charged in a competitive environment before the industry has been locked into the relevant standard. D. Competition law assessment As well as determining a FRAND rate for a licence to UP’s patent portfolio, the Court dealt with, and dismissed, Huawei’s claim that UP had abused its dominant position. 1. Dominance The Court found that UP held a dominant position on the basis that it had a 100 per cent market share of the market for licences under the relevant SEPs, a market definition which was not contested. However, the judgement acknowledges that, in the case of an SEP holder, dominance cannot be assumed as there can be constraints on their market power. For example, the FRAND obligation weakens an SEP holder’s position as does the risk that licensees will engage in patent hold-out.14 Nevertheless, UP was found to have held a dominant position in this case. 2. Issue proceedings prematurely The Court found that UP did not abuse its dominant position by issuing proceedings for an injunction prematurely. In particular, UP did not abuse its dominant position by failing to make Huawei an offer for the terms of a licence for its patent portfolio before commencing proceedings, as required by the framework set out in Huawei v ZTE. The Court found that it was sufficient that Huawei was aware of the existence of UP’s patents and was offered licence terms shortly after the proceedings started. Birss J held that this was ‘outside the letter of the CJEU’s scheme [in Huawei v ZTE] but only by a relatively short time’15 and that what matters is that each side makes clear that it is willing to conclude a licence on FRAND terms.16 The Court’s assessment of how parties should conduct FRAND negotiations is less prescriptive than the CJEU decision in Huawei v ZTE, and therefore in many ways more practical. This somewhat relaxed approach to interpreting the framework in Huawei v ZTE can be explained in a number of ways. First, a distinction is drawn between the legal bases for each of the claims. In Unwired Planet v Huawei, the FRAND undertaking was held to be justiciable on a contractual basis and could be enforced without recourse to competition law.17 However, the Huawei v ZTE ruling was based on an assumption that competition law was the relevant tool for enforcing the FRAND undertaking. The legal basis for that decision was that, in principle, a breach of the legitimate expectation of implementers to be granted a licence on FRAND terms could amount to an abuse of dominance, akin to a refusal to license.18 The importance of this distinction can be questioned as, whatever the basis for the FRAND obligation, the significance of the CJEU decision is that the manner in which FRAND negotiations are conducted has the potential to affect competition. The fact that the Judge accepted that the existence of the injunction request may increase the pressure on the licensee to accept the rates19 (which is essentially the basis for the Commission decisions in Motorola and Samsung) is not treated as a relevant consideration. Second, there is a distinction between the forums in which each of the claims were brought. The Huawei v ZTE decision was made in the context of German proceedings in which injunctions are normally granted before validity is tested or detailed FRAND assessments are made. In this context, ensuring proper steps are taken before an SEP holder seeks an injunction is crucial. However, injunctions in SEP cases in English Courts are normally only granted after the issues of validity and FRAND have been heard. The need for a prescriptive framework of steps to be taken before seeking an injunction is therefore arguably less important. The judgement does not explicitly reference this distinction20 but no doubt it played some role in the findings. As for future cases, the judgement makes clear that the framework laid down in Huawei v ZTE should be applied fluidly. Compliance by an SEP holder with the framework does not necessarily avoid a finding of abuse and deviation from the framework will not always be abusive – it will depend on the circumstances.21 This means that where a SEP holder fails to follow the Huawei v ZTE framework precisely, such seemingly abusive conduct can be ‘cured’, as long as the conduct does not prejudice the entire litigation. By analogy, this conclusion should also mean that an implementer which does not comply with the letter of Huawei v ZTE will not necessarily be at risk of an injunction, at least in the UK. That said, parties should think carefully before straying too far from the Huawei v ZTE framework – the Court’s findings were made on the facts of this case and it may not have been so willing to forgive UP’s failure to make an offer if the facts had differed, for example, if the defendant had been less sophisticated or the litigation had reached trial sooner. Non-compliant conduct may also of course remain high-risk if litigation takes place in the Courts of other EU Member States. Finally, as set out in Huawei v ZTE, this judgement makes clear that injunctions are available in the English Courts. If an implementer has been found to have infringed a valid patent and refuses at the end of the proceedings to take a licence on terms found by the court to be FRAND, the patentee is likely to be awarded an injunction. Equally, an injunction is unlikely to be available for an SEP holder that breaches its FRAND undertaking by refusing to accept terms determined by the court to be FRAND. 3. Unfair excessive prices The Court found that UP did not abuse its dominant position by imposing unfair excessive prices. In particular, the boundary of what is and is not a FRAND rate is different from the boundary of what is and is not an unfair price for an abuse of dominance (under Art 102(a) TFEU). Indeed, a rate can be higher than the FRAND rate without being abusive under competition law.22 On this basis, and in the context of SEPs and FRAND, the Court held that only an offer which is so far above FRAND as to disrupt or prejudice the negotiations will fall foul of competition law,23 so long as the recipient of the offer can see it is made in that context.24 For example, the worldwide 4G rate offered by UP in 2014 was around three times the benchmark rate determined by the Court; however, the Judge found that those offers were made as a step in negotiation and did not infringe competition law.25 In this respect, the judgement is arguably in line with existing EU case law. Huawei v ZTE had already established that a SEP holder would not abuse a dominant position by seeking damages. In a recent opinion relating to copyright licensing, Advocate General Wahl acknowledged that it would neither be ‘realistic nor advisable’ for competition law intervention in respect of any difference between a benchmark price and the alleged excessive price,26 and that only prices which are ‘significantly and persistently’ above the benchmark price should be deemed excessive.27 This supports the Court’s finding that only offers sufficiently above the FRAND benchmark should fall foul of competition law. Nevertheless, as noted above, the past case law practice of the European Commission has emphasised the potential negative impact of non-FRAND prices,28 and it remains to be finally established whether a separate form of abuse of dominance, through non-FRAND pricing, will be established in future. 4. Bundling of SEPs and non-SEPs UP was held not to have abused its dominant position by bundling its SEPs and non-SEPs in its first licence offer. The Court found that, at the request of Huawei, UP separated out the SEPs and the non-SEPs in its subsequent offers and therefore, this did not amount to conduct of a party trying to use its market power from SEPs to tie in its non-SEPs.29 5. Discrimination Perhaps more controversially, the Court found that UP did not abuse its dominant position by discriminating between Huawei and other similarly situated licensees. In particular, although it found (i) that Samsung and Huawei were ‘similarly situated’; (ii) that the licence which was agreed between UP and Samsung in 2016 was an equivalent or comparable transaction relevant for discrimination; it concluded that (iii) a distortion of competition between Huawei and Samsung was not established.30 The Court found that the differences in royalty rates offered to Samsung were very small percentages when expressed relative to the margins on the relevant products. That said, it did recognise that small differences in royalty rates can result in much larger differences in absolute numbers. Of considerable interest is the distinction which the judgement makes between the non-discrimination or ‘ND’ element of contractual FRAND and what was described as the ‘hard-edged’ discrimination requirement in competition law. In respect of contractual FRAND, the Court found that the ND aspect merely requires companies to take a benchmark rate approach to assessing royalties as that approach is itself non-discriminatory (i.e. an SEP holder must offer the benchmark rate to all licensees, notwithstanding their size).31 This does not, however, mean that UP must offer Huawei the same or similar rates as the 2016 UP-Samsung licence. Indeed, a licensee cannot demand a rate lower than the benchmark FRAND rate simply because another ‘similarly situated’ licensee has been offered that rate. (The converse, where a licensee is charged appreciably more than a benchmark, is more likely to be of concern.) In this case, the Judge considered that the ‘hard-edged’ discrimination arguments will only play a role where the difference in rates offered to similarly situated licensees would distort competition between the two licensees. Even if there may be cases (like the CJEU’s British Airways judgement),32 in which an inference can be drawn that competitive distortion is likely, the relationship between the royalties in this case, and the margins made on mobile handsets was such that the inference of competitive distortion was not met. In this case, the Judge found that the different rates offered to Samsung did not distort competition between Samsung and Huawei. III. Comment The Unwired Planet v Huawei judgement takes a novel, but perhaps practical, approach to the difficult questions raised in FRAND disputes by drawing a clear distinction between ‘contractual’ FRAND and ‘competition law’ FRAND. This means that an implementer can rely on the FRAND undertaking under contract law without recourse to competition law. However, it is likely that competition law will continue to play a central role in the enforcement of SEPs for a number of reasons. First, it is not straightforward to divorce the concept of FRAND from competition law in this way. Indeed, the FRAND obligation for SEPs is fundamentally a creature of competition law. Standardisation can give rise to significant pro-competitive effects, including the development of new and improved products, maintaining and enhancing quality, providing information and ensuring interoperability and compatibility. However, such agreements also give rise to restrictive effects on competition, not least because standards are typically agreed and decided by competing companies, but will need to be relied upon both by those companies and third parties. In the case of telecommunication standards, this can, amongst other things, risk leading to discrimination, the prevention of effective access to standards and/or increased prices for consumers.33 To deal with these competition law concerns, the FRAND obligation is used to prevent SEP holders from making the implementation of a standard difficult by refusing to license or by requesting unfair, unreasonable or discriminatory fees after the industry has been locked-in to the standard. In this sense, the FRAND obligation is a derogation from the Article 101(1) prohibition on anticompetitive agreements. It is therefore difficult to analyse ‘contractual’ FRAND without due consideration of the effects on competition. It will certainly be open to parties to raise such issues in future cases on SEPs and FRAND. Second, competition law can still deployed by implementers as a tool to prevent patent hold-up. Although UP was not found to have breached competition law on the facts of this case, competition law claims and defences remain open for future defendants to patent infringement claims relating to SEPs. For example, the Court acknowledged that on alternative facts it may have found that UP had abused its dominant position. For example, if UP had made an offer for the terms of a licence so far above the FRAND rate that it disrupted or prejudiced negotiations, or if UP had significantly departed from the framework for FRAND negotiations set out in Huawei v ZTE. The relevance of Article 101(1) was not raised in this case, but may be argued in future cases. Finally, the enforcement of SEPs and the corresponding FRAND obligation remains an area of significant interest for the competition authorities. The European Commission brought enforcement action against Samsung34 and Motorola35 in 2014 in relation to their enforcement of SEPs when those companies sought injunctions against Apple. The Unwired Planet judgement arguably diverges further from these cases than from the CJEU Huawei v ZTE ruling. It cannot be precluded that the Commission will again jump into this arena in order to reinforce the position it took in those earlier cases. Indeed, earlier this year, the Commission launched a consultation on the enforcement of SEPs through which it aims to create a smooth, practicable and fair market system for SEP licences. It has indicated that this will include provision of guidance on the enforcement of FRAND.36 Given the importance of the FRAND concept to future generations of mobile telephony, and to an increasingly large class of product manufacturers in the concept of the Internet of Things, it can be expected that the application of competition law to SEP-related conduct will continue to evolve. Footnotes 1 Unwired Planet International Ltd v Huawei Technologies Co. Ltd and ors [2017] EWHC 711 (Pat). 2 Case C‑170/13, Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH, 16 July 2015 (‘Huawei v ZTE’), para 12 3 Case Comp Samsung AT.39939, 29 April 2014. 4 Case Comp Motorola AT.39985, 29 April 2014. 5 Case C‑170/13. 6 Unwired Planet v Huawei [2017] EWHC 711 (Pat) (‘Unwired Planet v Huawei’), para 522, 807(1) and (2). 7 Ibid., para 627-791, 807(17). 8 Unwired Planet v Huawei, para 793. 9 Ibid., para 148. 10 Ibid., para 155. 11 Ibid., para 586, 591, 807(13). 12 See In re Innovatio IP Ventures LLC Patent Litigation Case No 11 C 9308, 2013 WL 5593609 (N.D. I11 Oct. 3, 2013) and Ericsson v D-Link 773 F.3d 1201 (Fed Cir 2014). 13 Horizontal Guidelines, para 289. 14 Ibid., para 656, 670. 15 Ibid., para 753, 755. 16 Ibid., para 738, 744(ii). 17 Unwired Planet v Huawei, para 744(viii). 18 Huawei v ZTE, para 53, 54. 19 Unwired Planet v Huawei, para 766. 20 Other than in the context of considering the earlier Orange Book case which the Court of Justice had to consider in Huawei v ZTE. See Unwired Planet v Huawei, paras 716–719. 21 Ibid., para 741, 744(v) and (vi). 22 Ibid., para 153, 757. 23 Article 102(a) prohibits an abuse of dominance which consists of ‘directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions’. 24 Unwired Planet v Huawei [2017] EWHC 711 (Pat), para 765. 25 Ibid., para 773, 781, 784, 807(17). 26 Case C‑177/16, Latvian Collecting Societies, 6 April 2017, para 102ff. 27 Ibid. 28 See for example Commission MEMO 14/322: ‘Antitrust decisions on standard essential patents (SEPs) – Motorola Mobility and Samsung Electronics – Frequently asked questions’. 29 Unwired Planet v Huawei [2017] EWHC 711 (Pat), para 790. 30 Ibid., para 488, 491, 493, 518, 807(10). 31 This does not arguably reflect the economic realities of the market as there are often legitimate reasons for offering different rates to new entrants and established market players, for example, as a result of the greater sales that can often be expected from larger players. 32 Case C-95/04 British Airways v Commission [2007] ECR I-2331. 33 Commission Guidelines on the applicability of Article 101 of the TFEU to horizontal co-operation agreements, 2011/C 11/01, (the ‘Horizontal Guidelines’), para 263ff. 34 Case Comp Samsung AT.39939, 29 April 2014. 35 Case Comp Motorola AT.39985, 29 April 2014. 36 Standard Essential Patents for a European digitalised economy, Ares (2017)1906931 – 10/04/2017. © The Author 2017. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of European Competition Law & PracticeOxford University Press

Published: Mar 1, 2018

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