Dr Gunnar Niels, Oxera Partner, acted as the economic expert for Unwired Planet in its successful defence of an abuse of dominance claim by Huawei, in the context of a dispute regarding the licensing of Unwired Planet’s standard essential patents (SEPs).
Brought as a part of a dispute regarding the fair, reasonable and non-discriminatory (FRAND) royalty rate for Unwired Planet’s SEPs, the allegations included abuse of a dominant position through commencement of litigation, bundling SEPs and non-SEPs and above-FRAND pricing.
In a judgment of 5 April 2017, Hon Mr Justice Birss ruled that Unwired Planet, despite having a dominant position in the licensing of its SEPs, did not abuse that dominance. Based on the specific context of the case—in particular, Unwired Planet’s position and its behaviour vis-à-vis Huawei—Mr Birss agreed with Oxera’s assessment of the alleged heads of abuse. He ruled that the commencement of the litigation by Unwired Planet, and its licence offers to Huawei, including a global portfolio licence of SEPs and non-SEPs, were not in breach of competition law.
The judgment also clarifies that royalty offers above FRAND do not necessarily imply abuse, and provides important guidance on the application of competition law in FRAND licensing cases. It is also an important judgment on FRAND assessments, finding that global licence offers could be found to be FRAND.
The full judgment can be found here.