The Challenge of Sanctioning Unfair Royalty Rate by the SEP Holder: ‘When’, ‘How’ and ‘What’

The holder of a Standard Essential Patent (SEP) is usually required to license its patent any licensee on the basis Fair and Reasonable Non-Discriminatory (FRAND) terms. In their recent judgments in Unwired Planet Sisvel v. Haier, UK Supreme Court German Bundesgerichtshof ruled that ‘range’, rather than ‘single’ royalty rate, may be considered compatible with FRAND commitment. On other hand, rate ‘beyond outer boundary range’ would not FRAND. addition, an ‘unfair’ might also regarded as abuse dominant position by SEP holder, breach Article 102(a) Treaty Functioning European Union (TFEU). paper analyses whether under what circumstances TFEU could relied competition authority Europe sanction case requested licensees. particular, assesses ‘when’ policy should unfair ‘how’ agency analyse accordance law EU Justice concerning and, eventually, ‘what’ remedies adopt. Patent; rate; Fair, terms; pricing; TFEU; Justice; United Brands test; benchmarking methods; efficiency defence;