US AND GERMAN APPROACHES TO FRAND DISPUTES: LIKE SHIPS THAT PASS IN THE NIGHT

The US and German approaches to resolving disputes involving FRAND-committed standard-essential patents (SEPs) diverge in many respects. While US courts are reluctant to award injunctive relief in SEP cases, but have shown some willingness to determine FRAND royalties in both bench and jury trials, the German approach is precisely the opposite - with German courts interpreting the ECJ’s decision in Huawei/ZTE as authorizing awards of injunctive relief in many instances, while showing little enthusiasm for actually determining FRAND royalties themselves. The US and Germany also differ in their tolerance for antisuit injunctions, which have become a recurrent topic in global FRAND disputes; and the countries’ perspectives on antitrust law differ fundamentally as well, with antitrust providing one of the few avenues for denying injunctive relief in Germany, while having relatively little bearing on SEP disputes in the US thus far. These divergences reflect not only important differences in legal cultures and institutions but also, arguably, different understandings of optimal innovation policy. One way to transcend these differences might be through the establishment of a global FRAND tribunal or mandatory FRAND arbitration, as others have suggested, though whether such a solution will ever be forthcoming remains to be seen.