[Article/Europe] Have Standard-Essential Patents Become Useless in Europe Too after the Long-Awaited Decision? (Christoph, 2016
更新日：1 日前
Article information
Article type: Publication review
Category: Europe
Topics: Injunctions, Licensing, Abuse of rights
First published on this website: 2026-11-01
Display and classification checked: November 2, 2026
Originally published on Ameblo: 2025-06-20 (Japan time). Full English translation.
[Article/Europe] Have Standard-Essential Patents Become Useless in Europe Too after the Long-Awaited Decision? (Christoph Rademacher, Intellectual Property Law and Policy Journal, Vol. 48 (2016))
As standardized technologies have spread, concerns have been raised that patentees may monopolize markets through SEPs.
Germany's “Orange-Book” judgment (2009) generally allowed patentees to seek injunctions against companies infringing SEPs, but subsequent European Commission policy emphasized the need to offer licenses on FRAND (fair, reasonable and nondiscriminatory) terms.
In 2013, the Huawei–ZTE litigation led to a referral to the CJEU.
The CJEU's 2015 judgment required the following process before a patentee enforces an SEP.
(1) The patentee must notify the alleged infringer of the patent infringement.
(2) The alleged infringer must indicate willingness to obtain a license on FRAND terms.
(3) The patentee presents a specific licensing offer based on FRAND terms.
(4) If the alleged infringer objects to the terms, it must present a FRAND counteroffer.
(5) If the parties fail to agree, they must ask a third-party body to determine an appropriate royalty.
The judgment clarified that seeking an injunction without complying with FRAND conditions may constitute an abuse of a dominant position. At the same time, deliberate “stalling tactics” in licensing negotiations are not permitted, and alleged infringers must respond promptly as well.
In the United States, contract law and equitable principles apply, while Japan regulates through the doctrine of abuse of rights. In Europe, by contrast, abuse of a dominant position under competition law provides the principal constraint.
Methods of calculating FRAND royalty rates are also discussed, including the equal allocation of value among standard-essential patents used by Japan's IP High Court and the classification approach of German courts.
In conclusion, the CJEU judgment imposed certain procedural constraints on both patentees and alleged infringers in enforcing standard-essential patents in Europe.
However, many issues remain unresolved, and national courts' decisions will have a major impact on future practice.
Translator’s notes (editorial)
The source title is truncated after the author’s first name and year; retained.
The source states that parties “must” ask a third-party body to set royalties if they fail to agree. This is translated as written without modifying the author’s account of the judgment.
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