On 18 July 2013, CMS held a well-attended seminar in London on 'Latest Developments in Standards, Patents and FRAND Licensing'. This also marked the launch of the new book by Globe Law & Business, “Intellectual Property in Electronics & Software”, to which CMS contributed a detailed analysis of standard-setting, competition law and FRAND licensing issues in Europe. (Please visit the publisher’s website for further details: http://www.globelawandbusiness.com/IPES/)
The seminar was chaired by Jeremy Morton and Chris Watson of CMS, with three guest speakers. Thomas Kramler, deputy head of the unit responsible for antitrust cases in the information industries, internet and consumer electronics sectors at the European Commission's Directorate General for Competition, gave an overview of the significant patenting activity in the technology sector, which has resulted in a spotlight on licensing behaviour and competition law. Three particular areas of interest which he highlighted were the transfer of FRAND commitments, the meaning of 'FRAND', and the availability of injunctions. He discussed the Commission's view of the concept of a 'willing licensee', the importance of considering neutral evaluation of licence terms in order to avoid disputes, and the necessity for licensees to be able to challenge patent rights.
Markus Deck, partner in the CMS German patents team, explained some of the recent case law in Europe, and in particular his views on the German 'Orange Book' defence and the recent reference to the CJEU in the Huawei -v- ZTE litigation. Among other interesting points, Markus queried whether any distinction could be made, in terms of market power, between a patentee who has given a FRAND licence commitment and one who has not. He also concluded that SEP injunction cases in Germany are likely to be stayed pending the outcome of the CJEU referral, and that the German courts may turn out to have been too strict in requiring prospective licensees to accept the validity of the patent.
Finally, James Flynn QC, a leading competition law barrister who has represented IPCom in recent litigation with Nokia, explained how a Court might approach the assessment of FRAND licence terms, and the practical difficulties that the English courts have faced in managing such cases effectively.
The event was open to all comers, and thanks go in particular to ITechLaw and CIPA, with whom several CMS lawyers are actively involved, for promoting it to their members.