Sisvel v Xiaomi: A SEP Dispute in The Netherlands Highlights the Global Challenge of FRAND Licensing

摘要

This comment examines the patent litigation battle over standard-essential patents (SEPs) that took place between Sisvel and Xiaomi at The Hague Court of Appeal in the Netherlands in early 2020. The case is an indicator that courts in different European jurisdictions will continue to go their own way when it comes the crucial decision of whether to grant injunctions on SEPs. The UK, which a decade ago was viewed as a jurisdiction better known for revoking patents than for issuing injunctions, appears to have become more "patentee-friendly" (at least in the case of SEP-owners). The Netherlands, meanwhile, applies an approach that appears more critical of the activities of NPEs, taking their lack of manufacturing productivity into account when determining the balance between whether to grant an injunction or not. This approach could well prove influential on other courts, and perhaps even the CJEU, if the rate of NPE litigation of SEPs increases in Europe in the years to come.