Advocate General Wathelet states that before seeking an injunction, a standard essential patent holder must inform an infringer that the latter needs a licence (Huawei / ZTE)

Summary The Advocate General’s advisory Opinion in the Huawei v. ZTE FRAND Case (C-170/13) would, if followed by the full European Court of Justice (ECJ), usher in a significant shift in the playing field in German litigation on Standard essential patents (SEPs). Germany has been known as a plaintiff’s venue in patent cases for a long time. Not only do German courts practice the bifurcation of infringement and invalidity proceedings, they have usually also been rather reluctant to accept non-infringement related defenses against threatened injunctions. For cases involving SEPs, this structural preference of plaintiff’s interests may have come to a sudden end if the ECJ follows its Advocate General. The Advocate General states that before seeking an injunction, the SEP holder must

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James Killick, Katarzyna Czapracka, Advocate General Wathelet states that before seeking an injunction, a standard essential patent holder must inform an infringer that the latter needs a licence (Huawei / ZTE), 20 November 2014, e-Competitions Bulletin IT & Dominance, Art. N° 70843

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