Topic dossier
FRAND under Huawei v ZTE in UPC case law
How the UPC's first-instance divisions and the Court of Appeal assess the steps of the FRAND defence under CJEU, judgment of 16 July 2015, C-170/13 – Huawei v ZTE.
- decisions in the dossier
- 75
- of them Court of Appeal
- 5
- steps of the test
- 9
- As of
- 6 Oct 2026
The steps of the test
The dossier orders the decisions by the steps of the legal test. For each step: the question it is about and the number of decisions addressing it.
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1. Framework and standard of review
Does Huawei v ZTE apply before the UPC, in which order and with which burden?
22 decisions
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2. Notice of infringement
Did the SEP holder sufficiently alert the implementer to the infringement before suing?
5 decisions
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3. Willingness to license
Did the implementer sufficiently express and show its willingness to take a FRAND licence?
11 decisions
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4. SEP holder's FRAND offer
Did the SEP holder make and explain a specific written offer on FRAND terms?
11 decisions
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5. Counter-offer
Did the implementer respond diligently with a specific FRAND counter-offer?
5 decisions
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6. Security and accounting
Did the implementer provide appropriate security and render accounts after its counter-offer was rejected?
7 decisions
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7. Negotiations and court-determined FRAND rate
How is the conduct during negotiations assessed, and does the court itself determine a FRAND rate?
18 decisions
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8. Anti-suit injunctions
How does the UPC respond to (threatened) anti-suit injunctions of other courts?
10 decisions
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9. Disclosure of licences and confidentiality
Must the SEP holder produce comparable licences, and how are they protected?
40 decisions
Selected passages
One decision per step – Court of Appeal first, then the most cited, then the newest – with a verbatim quote from the decision. The selection is not a legal assessment.
Step: Framework and standard of review
“A refusal by the proprietor of the SEP to grant a licence on those terms may, in principle, constitute an abuse within the meaning of EU competition law and may, in principle, be raised in defence to actions for a prohibitory injunction“
Step: Notice of infringement
“What is relevant is whether the alleged infringer is able to assess the alleged patent infringement on the basis of the notice of infringement.“
Step: Willingness to license
“Vor diesem Hintergrund erscheinen die Erklärungen der Beklagten eingangs der Verhandlungen ausreichend, um als hinreichend ernsthafter Auftakt zu weiteren Verhandlungen angesehen werden zu können.“
Step: SEP holder's FRAND offer
“Der Patentinhaber kann seinen kartellrechtlichen Verpflichtungen insbesondere durch das Angebot einer Pool-Lizenz nachkommen.“
Step: Counter-offer
“The counter-offer, made does not alter the previous outcome. The Defendants did not explain the conditions of the counter-offer in their submission.“
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More topics
- Urgency in provisional measures
- Infringement by equivalence
- International jurisdiction and competence of the divisions
- Security
- Claim construction
- Preservation of evidence and saisie
- Damages, information and rendering of accounts
- Confidentiality and access to the file
- Injunctions, proportionality and enforcement
Quotes are verbatim from the decisions; the version published by the court is authoritative. Not legal advice. Coverage and numbers