Antitrust Alert: Fast-Forward For FRAND Disputes In Europe

The Regional Court of Düsseldorf, Germany, has asked the Court of Justice of the European Union ("CJEU") to clarify a number of questions at the intersection of EU and German antitrust laws and patent law.  The Düsseldorf court hears the greatest number of patent cases in Germany and is one of the most important patent courts in the European Union.  Its questions relate to whether the holder of a FRAND-encumbered standards-essential patent ("SEP") may obtain injunctive relief against a business infringing its patent.  The answers of the CJEU may provide clarity to this hotly contested topic sooner than expected.

The issue

In most significant jurisdictions around the world, the plaintiff in a patent infringement action can seek an injunction preventing the accused infringer from continuing to practice the inventions claimed in the patent.  However, recently defendants have argued that, when an asserted patent is a SEP and encumbered with a fair, reasonable and