We recently reported on a decision of the High Court in the ongoing Unwired Planet v Huawei litigation, in which Birss J offered guidance on what constitutes a fair, reasonable and non-discriminatory (FRAND) licence. In a follow-up decision, the court has now defined a new type of injunctive relief, to which Unwired Planet is entitled.
This new type of injunctive relief, which Birss J has termed the “FRAND Injunction”, has been established in order to deal with the nature of FRAND licences. Unsurprisingly, Birss J confirmed that an injunction may be granted in respect of a defendant who is unwilling to enter into a FRAND licence. A FRAND injunction is subject to the proviso that it will automatically cease to have effect if the defendant agrees to enter into a FRAND licencing agreement. Moreover, unlike normal injunctions under English law, which are final even when the circumstances of a case change, either party may return to court after expiry of the FRAND licence to address whether the FRAND terms that were decided previously would still be considered FRAND. In practice, this could mean that a number of decisions as to what constitutes a FRAND licence might be required over the lifetime of a single patent.
In making this judgement, the court has provided a further tool in an attempt to bring certainty to FRAND negotiations, whilst being mindful of the facts that standards evolve and the values of standards-essential patents may change significantly during the term of a FRAND licence.