Injunctions on Standard-Essential Patents: Views from the US and the EU and Proposals for Courts

Igor Nikolic (University College London), “Injunctions on Standard-Essential Patents: Views from the US and the EU and Proposals for Courts”

What should courts do when dealing with claims for infringement of standard essential patents (SEPs)? I will analyse the practice of courts and government authorities in the US and the EU in situations when SEP holders seek injunctive relief for infringement of their SEPs. I will show that getting injunctions for infringement of SEPs is extremely limited in both jurisdictions. On top of that, antitrust authorities on both sides of the Atlantic investigated SEP holders alleging that merely seeking injunctive relief, under certain circumstances, amounts to antitrust offence. I then examine how limiting one party’s use of legal remedy negatively alters the process of licensing negotiations and, contrary than anticipated, may lead to more litigation and under compensation of patent holders. I conclude with proposals for courts to adopt when dealing with litigation of SEPs, which should strike appropriate balance between the interests of SEP holders and implementers, reduce frivolous litigation and induce settlements between parties.