ABSTRACT

Following the 2017 High Court decision in Unwired Planet v Huawei [2017] EWHC 2988 (Pat), it is clear that the courts of England and Wales consider the ETSI FRAND undertaking to be enforceable by third-party implementers as a matter of both contract law and European competition law. Given the pragmatic approach typically embraced by the common law system in the UK, it seems likely that this analysis will apply equally to FRAND (or RAND) declarations made to other standard setting organizations. While the courts of England and Wales respect the principle of freedom of contract and it is, therefore, improbable that either an IPR holder or an implementer will be ordered to enter into a FRAND licence, both contractual FRAND and European competition law issues will affect the relief to which a SEP owner is entitled should validity/essentiality be established, allowing the FRAND undertaking to be enforced in an indirect manner. As a common law jurisdiction, with the flexibility and discretion inherent in such a system (including the availability of declaratory relief) and subject to jurisdictional considerations, the UK provides a potentially useful forum for the creative resolution of FRAND disputes at the instigation of both potential licensees and SEP owners.