A
judge in the Patents Court division of the High Court has declined to transfer the
competition law claims in patent infringement proceedings to the Competition
Appeal Tribunal (CAT). Birss J accepted
that a hearing of the competition law issues by the CAT, with two other judges,
an economist and a competition law expert would be advantageous but he decided
that it would not be practical to split the competition issues from the
contractual issues relating to fair, reasonable and non-discriminatory (FRAND)
licence terms.
The
proceedings so far are technically complex and have already been split into six
trials. Unwired Planet alleges that Huawei and Samsung infringed multiple
telecoms patents. The defendants have
counterclaimed that Unwired Planet’s acquisition of patents from Ericsson infringed
competition law and that it violated obligations to license its standard
essential patents (SEPs) on FRAND terms.
It
is not uncommon for competition law issues to be raised by defendants as
counterclaims in patent infringement cases.
This is the first time that separation of the technical IPR issues around
patent validity and infringement from the competition law issues was a possibility
in a SEP case before the English court. Interestingly,
Birss J said that his decision was “[n]ot without some regret”. As this area of law is by no means straightforward,
the decision is ripe for appeal.
Unwired Planet International Ltd v
Huawei Technologies Co Ltd and others
[2016] EWHC 958 (Pat), 29 April 2016
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