Concerning standard-essential patents (SEPs), the European Commission (EC) has recently submitted an amicus curiae brief in the ongoing legal battle between VoiceAge EVS and HMD. This brief, dated April 15, 2024, underscores a fundamental critique of German patent jurisprudence post-Sisvel vs. Haier, advocating for a stringent, sequential application of the negotiation steps outlined in the Huawei vs. ZTE decision by the European Court of Justice (ECJ).
Key Points of the Amicus Curiae Brief
a) Sequential Steps are Mandatory
The EC’s brief reinforces that the steps delineated in Huawei vs. ZTE must be followed in order, without deviation. This procedural rigidity intends to ensure fairness in negotiations, preventing any party from bypassing the systemic structure meant to balance the interests of patent holders and implementers.
b) Clarification on Step Two
Significantly, the brief clarifies the nature of the second step in the Huawei framework—the expression of willingness to take a license on FRAND terms. It stipulates that this declaration must be assessed based on its content at the time of declaration, not influenced by any subsequent actions or negotiations. This interpretation aims to preserve the integrity of the initial intent and prevent the negotiations from being tainted by later developments.
c) Direct Impact and Wider Ramifications
The brief challenges the current practices of German courts, particularly their interpretation and application of the Sisvel vs. Haier doctrine, which the EC argues deviates from EU competition law. This stance not only questions the validity of past injunctions granted under the disputed interpretation but also sets a precedent that could reshape future SEP litigation across Europe, in particular in Germany.
d) Implications for Future SEP Disputes
The EC’s intervention is a critical reminder of the overarching authority of EU law and the ECJ’s interpretations over national jurisprudence. By advocating for a strict adherence to Huawei vs. ZTE, the EC is in favor of a more predictable and balanced SEP licensing negotiations.
Moreover, the emphasis on sequence and clarity in the negotiation steps should lead to more transparent interactions between SEP holders and implementers, fostering a more cooperative and less adversarial environment.
It will be interesting to see, how this might also have an impact on the first SEP cases, the UPC is dealing with. Of course, defendants in SEP cases could – and should – refer to the well-balanced opinion of the European Commission.
Conclusion
The European Commission’s amicus curiae brief in the VoiceAge EVS vs. HMD case is a very useful guidance for SEP litigation, in particular before the UPC. It calls for a rigorous application of established ECJ guidelines, specifically the Huawei vs. ZTE framework, which mandates a sequential, transparent negotiation process for SEPs.
Key takeaways
