On 18 December 2024, the UPC’s Munich LD has granted Huawei a seven-country injunction against Netgear over infringement of their European patent no. EP3611989 (“Method and apparatus for transmitting wireless local area network information”), a WiFi 6 SEP. The injunction covers the seven UPC member states including Germany, France and Italy as well as Belgium, Denmark, Finland and Sweden. It is the first time for UPC to issue a SEP injunction over a FRAND (fair, reasonable and non-discriminatory license terms) defense, and the first commercial one.

It is a safe assumption that Netgear will appeal the injunction and seek an enforcement stay. Meanwhile, it is additionally conceivable that Netgear will request a temporary restraining order (TRO) from the United States District Court for the Central District of California in an attempt to undermine the UPC’s jurisdiction ahead of a U.S. antisuit injunction hearing in late January.

In the latest judgment, Munich LD pointed out that Netgear failed to explain why it refused to accept Sisvel's WiFi 6 patent pool license proposal, leading to its defeat. Huawei is the largest contributor to the patent pool and has made a bilateral offer. Although Netgear defended itself, the court believed that there was a loophole, and it failed to prove that the patent pool license terms did not meet FRAND requirements. It is emphasized that SEP holders only need to make a patent pool offer to meet FRAND obligations. Only if the terms are proven to be unfair, unreasonable or discriminatory, can implementers reject the offer.

This judgment indicates that implementers cannot simply criticize a patent pool offer to refuse to accept it but must provide specific evidence to prove that there are issues with the FRAND terms. The court also pointed out that SEP holders may file counterclaims in national courts in antitrust litigation to seek more legal protection.

The ruling provided an important reference for similar cases despite not resolving the basic legal issues related to SEPs. Obviously, Huawei has multiple legal means to deal with Netgear's FRAND defense.

From ijiwei.com

December 20th, 2024