On 26 August, 2020, the UK Supreme Court decided a standard-essential patent (SEP) dispute between Huawei and Unwired Planet.1 The Supreme Court held that an English court can (a) enjoin infringement of a UK SEP where the infringer is willing to take a UK license, but refuses to take a worldwide licence on “fair, reasonable and non-discriminatory” (FRAND) terms, and (b) set the royalty rates and terms of such a license. The judgment clarifies other SEP licensing issues, including the interpretation of the non-discrimination component of FRAND and how an SEP holder seeking to enforce its IP rights can avoid Article 102 TFEU. Some commentary to date has suggested the judgment strengthens SEP holders’ position, but the necessary corollary that any nation’s courts can set worldwide FRAND rates is expected to lead to forum shopping, inconsistent outcomes, and anti-suit injunctions.
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