Published: 1/13/15
In announcing enforcement actions involving the invocation of injunctive relief by two holders of FRAND-encumbered SEPs, the European Commission stated that “it is anti-competitive to use injunctions in relation to SEPs in the following circumstances: when in a standardisation context, a SEP holder has committed to license the SEP on FRAND terms and the licensee is willing to take a licence on such terms.” The Commission stated that seeking injunctions in such circumstances “can distort licensing negotiations and lead to licensing terms with a negative impact on consumer choice and prices.” Although “SEP-based injunctions should be available when there is an unwilling licensee,” the Commission determined that “where the holder of a SEP has given a commitment to license on FRAND terms and where the company against which an injunction is sought is willing to enter into a FRAND licence agreement, the seeking of an injunction on the basis of SEPs can constitute an abuse of a dominant position.” Potential licensees of SEPs should remain free to challenge the validity, essentiality or infringement of SEPs. Therefore, conducting such a challenge does not render a potential licensee “unwilling.”