The ECJ preliminary ruling in Huawei and the Commission’s findings in Motorola and Samsung provide much needed guidance on the boundaries of FRAND negotiations. They set out a framework for evaluating whether the SEP-holder’s pursuit of an injunction against an alleged infringer is an abuse of dominant position under Article 102 TFEU. This paper provides a roadmap of the issues in the Article 102TFEU analysis of the SEP-holder’s recourse to courts’ injunctions. It examines the framework for FRAND negotiations prescribed by the ECJ in Huawei and the role played by the new concept of ‘willing licensee’ for the purpose of applying Article 102 TFEU in the context of SEPs. Finally, this article sheds light on the legal theories behind the ECJ preliminary ruling in Huawei and the Commission’s decisions in Motorola and Samsung, while providing alternative theories of abuse in principle applicable in the circumstances.
World Competition