Advocate General Wathelet’s disappointing Opinion in Huawei Technologies sets out a test that is divorced from reality. -

The application of competition and antitrust law to standard essential patents (“SEPs”) is a matter of great debate in many jurisdictions. There have been a number of significant developments recently in Europe with the recent adoption of two controversial decisions by the European Commission (Samsung and Motorola1) and the consideration of these issues in an Opinion by Advocate General Wathelet to the European Union’s highest court in the current Huawei Technologies case.

On 5 April 2013, the Landgericht Düsseldorf (Germany) referred a series of questions to the Court of Justice of the European Union (“CJEU”) in relation to litigation between Huawei and ZTE requesting guidance on when an application for an injunction brought by the holder of SEPs could amount to an abuse of a dominant position contrary to Article 102 TFEU. This reference resulted from the controversial application of the Orange Book standard3 and its purported application by several lower German courts to conclude that a potential licensee can only be considered to have made a suitable licensing offer to the SEP holder if it commits not to challenge the essentiality, validity and infringement of the patent(s) in suit.