In Huawei Technologies v ZTE, the Regional Court of Dusseldorf referred a number of questions to the Court of Justice. In particular, it asked the Court whether, and if so when, it might constitute an abuse of a dominant position contrary to Article 102 TFEU for a patent holder, in this case the holder of a standard-essential patent (SEP) which had given a commitment to license that SEP to any third party on fair, reasonable and non-discriminatory (FRAND) terms, to seek an injunction against a potential licensee alleged to be infringing the patent. The case raises a number of difficult issues for resolution at the interface of antitrust and patent law and, especially the question of whether, and if so when, it is legitimate for competition law to encroach on exclusive patent rights. This article commences by examining the background to the case, which is essential to understanding the questions raised and how they might be answered. It then analyses the questions that have been put to the Court in Huawei Technologies against this background and considers how it might answer them. It suggests that even though EU precedent does not provide a clear solution to the questions posed, jurisprudence does set out some guiding principles which can be relied upon to construct an answer. It concludes, however, that even if this matter is resolved, other pressing – and difficult – matters remain which require further development. As the FRAND obligation leaves vast scope for disagreement between SEP-holders and implementers over a number of fundamental issues, it is critical that mechanisms are put in place which will allow FRAND disputes to be resolved quickly and efficiently to the mutual benefit of SEP-holders and implementers.
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