A recent ruling in a Düsseldorf lawsuit filed by Unwired Planet International Limited may signal a dramatic shift in how Germany approaches fair, reasonable, and nondiscriminatory (FRAND) licensing disputes. On April 5, the Higher Regional Court of Düsseldorf issued an opinion after a February hearing in which it criticized Unwired Planet and other NPEs that acquire standard essential patents (SEPs) to seek higher licensing rates, asserting that such behavior is a “flagrant violation of the ban on discrimination under the FRAND rules”. That ruling, combined with a nascent legislative reform effort over injunctive relief, indicates that Germany may soon start to become less friendly toward patent plaintiffs overall. This is the second time in the past year that the Unwired Planet campaign has played a significant role in the development of European SEP jurisprudence, following the UK Court of Appeal’s ruling in Unwired Planet v. Huawei. Meanwhile, Chinese courts have only just begun to telegraph their posture toward international FRAND disputes, and a pending US appeal in litigation between two operating companies may soon provide further clarity on how American courts will approach these issues.
Weeks after the announcement of its acquisition by private equity firm Brevet Capital, PanOptis Holdings, LLC (through various litigating affiliates) has filed its first new infringement case in two years, suing Apple in the Eastern District of Texas over a group of patents declared essential to the LTE standard (2:19-cv-00066). Apple is accused of infringing the patents-in-suit—each of which originated with Ericsson, LG Electronics (LGE), Panasonic, or Samsung—through provision of “all [its] products capable of implementing the LTE standard”, including all “LTE-capable models” of Apple’s iPhone, iPad, Watch products. Three of the patents-in-suit have been previously asserted by PanOptis in a campaign that has also hit BlackBerry, Huawei, Kyocera, and ZTE.
The UK Court of Appeal has upheld last year’s ruling, by Justice Colin Birss of the High Court of Justice, that a global license was appropriate in a long-running standard essential patent (SEP) licensing dispute between Unwired Planet International Limited and Huawei. However, the court rejected Justice Birss’s controversial rule that there can be only one fair, reasonable, and non-discriminatory (FRAND) rate for a particular set of parties and circumstances, holding that any number of sets of terms can be fair and reasonable for a given dispute in light of the inherent complexity of SEP licensing and the factors at play in such negotiations. The affirmed opinion was the UK’s first ruling on FRAND licensing and led to the imposition of the country’s first FRAND injunction.
RPX noted, among the patent transfer records released during the first half of September, a number of patent transactions that suggest that new litigation campaigns will soon follow. Assignees in this week’s report include affiliates of IP Valuation Partners LLC and Monument Patent Holdings, LLC, with assignors ranging from small operating companies to tech giants.
European NPE litigation has begun to see a shift toward the UK for litigation of standard essential patents (SEPs) and fair, reasonable, and non-discriminatory (FRAND) licensing disputes in the wake of the UK High Court of Justice’s decision in Unwired Planet v. Huawei. Meanwhile, NPEs litigating in Germany have seen mixed success in their pursuit of injunctive relief, against frequent defendants, in recent weeks, with multiple German NPE suits also ending in settlement in campaigns waged by publicly traded American NPEs.