In SEP and non-SEP cases alike, unwilling licensees have no proportionality defense to patent injunctions in Germany: Dusseldorf court ruling also clarifies need to seek compulsory license first

There's an expected but nevertheless interesting development here that is of interest to those litigating patent infringement cases in Germany's national courts and/or its local divisions of the Unified Patent Court (a new judiciary scheduled to go into operation next year). A couple of judgments by two different divisions of the the Dusseldorf Regional Court that have recently been published contain passages on the narrow (actually, next to non-existent) applicability of the proportionality defense to patent injunctions under last year's amendment to Germany's patent injunction statute (§ 139 PatG, Art. 139 Patent Act):

• On June 30, 2022, the court's 4b Civil Chamber (Presiding Judge: Dr. Daniel Voss ("Voß" in German)) enjoined an automotive supplier

  from making sunroofs. The patent-in-suit was set to expire two months after the judgment, so any grace period would have been tantamount to ordering no injunction at all. The impact on downstream customers like BMW was deemed tolerable, especially given how short the relevant period was.

• One week later, the court's 4c Civil Chamber (Presiding Judge: Sabine Klepsch) enjoined pharmaceutical company Gilead from making a hepatitis C medication that infringed a NuCana patent. Juve Patent reported on July 21, and now the Kluwer Patent Blog has published a redacted version of the judgment (PDF).

As Juve Patent noted on August 17 on the occasion of the first anniversary of the entry into force of Germany's amended patent law, and as I've been predicting for a long time, "nothing has changed." Not a single case is known in which the proportionality defense made even the slightest difference. That was, by the way, the legislative intent--and if there had ever been any doubt, Germany's chief patent judge eliminated it speaking at a Chinese conference in October 2021.

The same two Dusseldorf judges who handed down the two decisions I'm talking about now already outlined their thinking in January 2022. No surprise there either. The only way anyone can be surprised now is if one listened to the wrong "experts."

While the Unified Patent Court Agreement (UPCA)--not the German Patent Act--is the statute governing the UPC, defendants will try to raise proportionality defenses there a well. As per Art. 62 (2) UPCA, "[t]he Court shall have the discretion to weigh up the interests of the parties and in particular to take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction." The UPC will have to develop its case law from scratch (while complying with applicable EU law), and competitive dynamics between the UPC and national courts during a transitional period will force the UPC to be reasonably patentee-friendly: otherwise patent holders will avail themselves of national courts for as long as possible, and the UPC won't take off for some time.

These are my take-aways from the proportionality-related passages of the two Dusseldorf judgments:

1. Either of those judgments places the emphasis and, especially, the burden on defendants. The net effect is that a "willing licensee" standard applies, whether the patent-in-suit is a FRAND-pledged standard-essential patent (SEP) or a non-SEP. I'm not saying it's going to be an absolutely identical willing-licensee standard, but should there be any differences, they'll be minor. Patentees enjoy broad discretion as they make their demands, while infringers will be enjoined if they make the smallest mistake. For instance, the sunroof ruling contains a sentence that I interpret as saying that the patent holder is in its right to demand that the infringer take a portfolio license as opposed to a license covering only the particular patent-in-suit. No one ever doubted that a non-SEP holder could take that position, but this is now another parallel to Germany's FRAND caselaw.

2. In either case, the patent holder was willing to grant a license. I've been saying for a long time that patent holders will be on the safe side if they offer a license. And I explained even prior to the formal adoption of that patent bill that the amendment failed a 'Keep It Simple, Stupid' test. Almost three years ago, I said the situation in Germany wouldn't change without an equivalent of eBay factor #2. There you have it. Those advocating proportionality always said that the pattern they were concerned about was just the one of patentee overcompensation--and not the kind of case in which a company truly seeks to enforce exclusivity to combat counterfeiting or to maintain a competitive advantage. But a patentee that pursues royalties rather than exclusivity can easily make a licensing offer.

3. In the pharmaceutical case, the Dusseldorf court bases its rejection of Gilead's proportionality defense on a doctrine according to which a defendant making a public-interest (here, harm to patients) argument has to seek a compulsory license in the Federal Patent Court (Art. 24 Patent Act) in the first place, and the proportionality defense under Art. 139 Patent Act is merely "subsidiary" to that one (meaning that if there are issues left to be addressed after the compulsory-license proceeding, some minor adjustments to an injunction, such as a use-up period, may be an option). However, the court also explains that even without that hard-and-fast doctrine, the proportionality defense would have failed anyway if the overall conduct of the parties--particularly also that of the infringer--is considered.

   So, you can be deemed an unwilling licensee for all sorts of reasons anyway, but if you don't seek a compulsory license, that fact in and of itself calls into question your willingness to take a license and fairly compensate the patentee. Whether proportionality is a "subsidiary" defense or whether your failure to bring a compulsory-licensing action goes into a Sisvel v. Haier-style behavioral analysis, the outcome is the same.

   The new injunction statute's reference to the interests of third parties (which I simply equate to the public interest for the purposes of this analysis) was misperceived as a major breakthrough for the pro-reform movement. In early 2021, Judge Dr. Klaus Grabinski of the Federal Court of Justice (and soon of the UPC) took an even patentee-friendlier position: he essentially wrote that a proportionality defense based on third-party interests would have to meet the exact same standard as a request for a compulsory license.

   We're now probably going to see more and more compulsory-licensing cases under Art. 24 Patent Act--as if the Federal Patent Court wasn't busy enough already. And those cases usually go nowhere. In the entire history of the Federal Republic of Germany, only two compulsory licenses were granted, and one of them was overturned on appeal.

   The UPCA refers defendants to national courts if they seek compulsory licenses (even with respect to the future Unitary Patent). This is a built-in asymmetry: patent holders can obtain a multi-country injunction from the UPC, but compulsory-licensing cases would have to be brought in multiple countries in parallel.

4. Those two Dusseldorf non-SEP decisions that nevertheless apply a SEP-like standard show that some of those who were seeking to reform Germany's patent injunction framework are wrong when they say that SEP decisions (such as in the Ford and OPPO cases) were always outside the intended reform's scope. That makes no sense because any non-SEP holder, by doing what it takes to be considered a willing licensor (such as by making a formal licensing offer), can immediately be in at least as strong a position as any SEP holder vis-à-vis a proportionality defense. Arguably, a non-SEP holder can even argue that its position should be stronger as there is no FRAND licensing obligation under antitrust law (even non-SEPs can be subject to antitrust rules, but those cases are few and far between).

   Post-Sisvel v. Haier, no defendant has been deemed a willing licensee except for one case in which a particular patent pool's duplicative-royalties policy was at issue. Apart from that outlier, Philips was the last SEP holder to be denied an injunction in Germany despite prevailing on the merits, and about five years have passed since then.

   As I've been saying for a very long time, unless you have the equivalent of eBay factor #2 (meaning that an injunction will issue only if monetary relief is inadequate), you won't get different outcomes in cases where the patent holder has an obligation or expresses a will to grant a license. All you get then--and that's what we can see happening now in Germany--is a total waste of money (by raising the additional defense and pursuing compulsory-licensing actions in the Federal Patent Court).

5. Both Dusseldorf judgments make it clear that a defendant firstly has to meet its own obligations to avoid harm to third parties (be it BMW or hepatitis C patients) before it can raise a defense centered around third-party interests.

6. Companies who were advised by outside counsel in early 2020--when the German government's first official draft patent reform bill was made public--that the law would make a difference should ask themselves whether they asked the right professionals. That early draft was no defendant-friendlier than the version that was finally adopted (it didn't even recognize third-party interests as an element of a proportionality defense, for instance). And the results are clear now. So whether some lawyers intentionally overstated the future impact of the measure in order to dissuade their clients from seeking meaningful reform or whether they were unrealistic, their opinions were wrong, as the course of events has meanwhile shown.

Another element of last year's legislative amendment took effect earlier this year: the six-month target for preliminary opinions by the Federal Patent Court. And it's doomed to be no more than marginally more useful than the modified injunction statute.

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Conservative politicians shouldn't join Greens and communists in calls for compulsory licensing of COVID/mRNA vaccine patents

This post is a departure from my blog's industry focus that I wouldn't have contemplated if not for the highly unusual circumstances we're facing in the COVID-19 pandemic. The scientific aspects of pharmaceutical patents are above my head, but that also applies to the heads of those politicians proposing compulsory licensing of such patents in the current situation.

I just became aware of a disconcerting statement by the chairman of the center-right European People's Party (EPP) group in the European Parliament, Manfred Weber MEP (Christian Social Union, CSU), quoted in a German newspaper article (my translation):

"If need be, admitted vaccines must also be made by others on the basis of compulsory licensing."

This is the same Manfred Weber who lent unconditional support to the EPP's Axel Voss MEP with respect to upload filters (EU Copyright Reform). In other words, he wants IP overenforcement against kids who upload videos from a private party to YouTube, with some commercial music playing in the background, but he wants to deprive the companies who made a miracle happen--the availability of multiple COVID-19 vaccines after such a short time--of their rights.

His party, the CSU, is the regional sister party (comparable to the Minnesota Democratic-Farmer-Labor Party vs. the Democratic Party) of Chancellor Angela Merkel and European Commission President Ursula von der Leyen's party, the Christian Democratic Union (CDU). It's unlikely that he would toss out such an idea if it hadn't at least been floating around in those circles.

The EU is obviously in deep-shit trouble. In yesterday's New York Times there was an article entitled Slow Pace of Vaccinations Pushes Europe Toward Second Economic Slump. The numbers speak a clear language: as of the start of February, Israel had administered at least one dose of a COVID-19 vaccine to almost 60% of its population, the United Arab Emirates to approximately 35%, the UK to approximately 15%, the U.S. to approximately 10%, and the EU only to about 2%-3%. As I explained early last month, the EU's purchasing decisions were wrong at any given point in time just based on then-available information (New York Times Coronavirus Vaccine Tracker)--and liability issues do not serve as an excuse, as it's simply a reality in a seller's market that not only prices but also other terms are impacted by the demand-supply discrepancy. And money could have solved the problem at the right time by enabling certain companies to invest in European manufacturing capacities early on--just what ex-president Trump achieved with his Operation Warp Speed program.

German and other EU politicians shouldn't make themselves ridiculous by sometimes arguing in the same interview that the U.S. can outvaccinate the EU because it's such a large country, and Israel does so because it's a small country. Some politicians sound like those communist leaders did in the late 1980s before the fall of the Iron Curtain.

The problem is not going to get solved anytime soon, though I was surprised by the good news regarding the Russian Sputnik V vaccine, which appears to beat all other adenovirus vector-based COVID vaccines by a wide margin by using a different vector for the second (booster) jab (and both vectors appear to be unharmful human adenovirus strains)--the EU may end up importing that one. Meanwhile, the virus keeps mutating at a pace that makes it hard to follow. Yesterday, for instance, the BBC reported that the UK just found "more coronavirus cases with 'concerning' mutations."

A crisis is a terrible thing to waste. The EU should learn its lesson and reform itself. Brexit has its first success story (outvaccinating the EU by a factor of 5), and the EU will make things only worse if it doesn't think things through. The Daily Mail was never the EU's best friend, but in this article the British newspaper quotes media from all over Europe, including some very EU-friendly ones, who concluded they can't defend the indefensible anymore with respect to the EU's temporary intentions to put border controls in place between the Republic of Ireland and Northern Ireland in order to enforce vaccine export restrictions (which are, by the way, the epitome of "vaccine nationalism" as opposed to people being all for a coordinated EU effort, but criticizing what went wrong).

Even to only toss out the idea of compulsory licensing in this particular context is an insanity.

In the tech sector, I'm against injunctive relief except maybe under the most egregious of circumstances. Just yesterday I stressed again that patent remedies must be proportionate. And I'm not ruling out at all that maybe, further down the road, some general mRNA-related patents might prove overbroad--and compulsory licensing might be needed on antitrust grounds, should there be a clear and present danger of only one or two companies ultimately being able to make that new generation of vaccines (and potentially other types of mRNA-based medications).

But in the current situation, there simply isn't an economic case for compulsory licensing of COVID-19 vaccine patents. (To be clear, patent remedies are only available after publication of the related applications, and COVID-19 is too new for anything to have been published yet, but there are some general mRNA-related patents and patent applications that BioNTech might be able to enforce already against anyone plagiarizing their COVID-19 vaccines.)

The cost of lockdowns and similar restrictions is so high that there's enough money to be made not only for the companies that invented the vaccines but also by those who merely manufacture them. The recent deal between Pfizer partner BioNTech and Sanofi (which invested in BioNTech two years ago) shows that solutions can be worked out at the negotiating table. It's not just about immediate revenue opportunities: every contribution to what may help to solve the COVID-19 problem generates political goodwill and nice publicity.

What governments should do is incentivize such partnerships by making offers that enable both the inventor and the manufacturer to be generously rewarded. There's this saying that you sometimes achieve more with a gun and a smile than with a smile alone. In this case, however, the solution is money, not governmental heavyhandedness like in a plan-based Soviet-style economy.

I have to stress again that what I just wrote was only about COVID-19 vaccines. I do very much believe in the compulsory licensing of standard-essential patents (SEPs), as most of my readers know. But there's a difference between a couple or a handful of patents reading on a COVID-19 vaccine, with enormous risks taken, and the hundreds of thousands of patents one could theoretically assert against a smartphone maker or automotive company--and no single one of which patents truly protects a major investment in research and development.

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The big elephant in the FTC v. Qualcomm antitrust room: compulsory licensing of standard-essential patents

This is the second follow-up to the publication of Qualcomm's Ninth Circuit opening appellate brief in the FTC antitrust case, and a direct follow-up to the post on Qualcomm's argument against an antitrust duty to deal to extend exhaustive standard-essential patent (SEP) licenses to rival chipset makers.

For a recap, Qualcomm's opening brief

• says Judge Lucy H. Koh of the United States District Court for the Northern District of California mistakenly based her holding of an antitrust duty to deal (with competitors) on the Aspen Skiing Supreme Court ruling, with Qualcomm attacking the abandonment of profitable voluntary conduct more fiercely than the other factors, pointing to the Ninth Circuit's post-Aspen no-duty-to-deal findings in Metronet and Aerotec; and

• tackling the FTC's holistic (in other words, "grand evil scheme") alternative reasoning (the next best thing to a right-for-the-wrong-reasons argument) by pointing to the Supreme Court's 2008 LinkLine decision that says you can't prove an antitrust violation based on a wholesale-retail margin, but you need to prove either a duty to deal on the wholesale side or predatory pricing at the retail level--and the price-squeeze theory disallowed by LinkLine can't be avoided by mere labels (on that part, I agree, though Qualcomm's unique business model does raise issues beyond LinkLine's scope in my view).

Unlike at the stay stage, the FTC now has to defend Judge Koh's actual reasoning (though right-for-the-wrong-reasons fallbacks don't hurt). Contrary to what Qualcomm naturally asserts, one can shoehorn the case at hand into the Aspen pattern, but it's not trivial as there are gaps that one needs to bridge.

Even I as an outspoken critic of Qualcomm's business model don't doubt for a second that Qualcomm's pre-Quanta agreements with competing cellular baseband chipset makers weren't intended to be exhaustive. But does that make them involuntary? Qualcomm can't claim that it signed those agreements at gunpoint or to comply with regulations. The Supreme Court didn't say in Quanta that it overruled, or expanded, an older doctrine. Instead, the highest court in the land said that this had been the law for 150 years, and even the (relatively speaking) more recent case that governed Quanta is from the 1940s, long before there was such a company as Qualcomm. I readily believe Qualcomm that they had misinterpreted the law, but does that make the agreements they signed until then involuntary?

Additionally or alternatively, one can hold against Qualcomm that it entered into FRAND licensing declarations such as the two with respect to which Judge Koh entered summary judgment that they undoubtedly required Qualcomm to extend FRAND licenses to rival chipset makers. Again, Qualcomm's self-delusionary opinion might have been that it could circumvent that obligation, but we're talking about a voluntary course of dealing. (To be clear, I'm not saying that breach of contract is an antitrust violation.)

Then there's the "good for the goose" alternative to a conventional voluntary-conduct finding. Qualcomm itself required everyone, even companies like Ericsson that never did so, to grant exhaustive licenses to them that benefited their chipset customers. I was personally in that Paris courtroom where Apple avoided a French preliminary injunction against an iPhone model because Samsung's license agreement with Qualcomm covered Apple as Qualcomm's customer. What Qualcomm did in its dealings with other patent holders may very well serve as a substitute for a more conventional "abandonment of profitable voluntary course of dealing" theory.

But I wouldn't have used the verb "to shoehorn" if the Aspen-to-Qualcomm pattern matching was extremely simple and comfortable. I still believe it's doable and defensible, and better than the LinkLine pitfall, but it does take some effort.

Besides Aspen shoehorning and navigating around LinkLine, there's actually a third approach. The FTC won't be able to go down that road because it's politically difficult enough for the FTC to even just defend its trial win, so there's no realistic way the FTC could agree on a more aggressive theory. However, the FTC's future amici curiae will be free to argue what they want, and amici often go beyond what the party they support says. And even if nobody raised that issue here because everyone believes it's more conservative to just stick to Aspen (a shoe that can fit, but doesn't fit like a glove), there will be other cases down the road, involving either Qualcomm or other SEP holders, such as that Continental v. Avanci case presently before Judge Koh (Qualcomm is one of Avanci's contributors, although the focus there is mostly on Nokia).

That tertium is the big elephant in the room: straightforward compulsory licensing.

Yeah, I know that the mere thought of it stirs up a hornets' nest. I'm not one to shy from controversy and have advocated compulsory SEP licensing for a long time. This is a litigation and policy blog, not a popularity contest.

In 2014, the Congressional Research Service (a department of the Library of Congress) published a paper by an unnamed visiting scholar, Compulsory Licensing of Patented Inventions (PDF). While significant parts of the document focus on international trade with a particular emphasis on pharmaceutical patents, it provides a pretty good overview. It addresses two kinds of compulsory licensing:

• compulsory licensing in the narrow sense of license agreements having to be concluded due to legal obligations, and

• compulsory licensing as the net effect of an inability to obtain and enforce injunctive relief (with courts awarding an ongoing royalty).

The paper notes that "for some, the distinction between a compulsory license and an 'ongoing royalty' is one without a difference." In some cases that may be right, but when it's about component-level SEP licenses, the question is whether or not a license is exhaustive. Given the Supreme Court's generally comprehensive and expansive take on patent exhaustion, there's a strong argument that a component maker paying a court-ordered ongoing royalty (and, thanks to the denial of an injunction, being allowed to continue to implemented the patented technique) must be able to sell the effectively-licensed product, and the downstream must benefit from exhaustion. I have even raised the question on this blog whether Qualcomm's promise not to assert patents against chipset makers triggers promissory estoppel and whether such promissory estoppel should also have an exhaustive effect. Arguably, those theories would be reconcilable with the Lexmark approach and the fact that courts believe a covenant not to sue is a license by any other name for the purposes of an exhaustion analysis.

Courts around the globe have struggled with SEP injunctions for a long time. If any jurisdiction had allowed any SEP holder to preclude anyone else from implementing a standard by insisting on the exclusionary rights that normally go with a patent, there would have been chaos:

• Some patent holders, especially trolls (since no one can countersue them for infringement), would have extracted way supra-FRAND royalties, and as a result of royalty stacking, it would have become economically impossible to implement any standards affected by such behavior.

• Some other patent holders would have leveraged their SEPs to shut out any new entrants.

The standardization system would have broken down. The economy at large would have suffered massive damage.

But there's a conundrum: patents are exclusionary rights. They are, by definition, monopolies. However, the specific problem with SEPs is that if you had, say, 500 truly essential patents reading on a standard, and if those 500 were held by, say, 50 different patent holders, then any single one (!) of those 50 patent holders could preclude anyone else from practicing the standard, be it for the purpose of exortion or that of monopolization.

U.S. and EU (especially, but not only, German) law went in completely different directions as courts recognized the problem and were looking for a solution:

• U.S. courts typically threw out or didn't even reach antitrust claims, but they held SEP holders to their FRAND licensing pledges on the basis of contract law.

• EU, particularly German, courts didn't have that option, however, for lack of third-party beneficiary rights. The contributors to a standard-setting process make their FRAND promises to standard-setting organizations (SSOs). But implementers of a given standard are third parties, and EU (particularly German) law doesn't recognize the right of a third-party beneficiary to enforce an agreement between others. In order to poke a hole into the exclusionary rights of patent holders (in that regard, Germany is even out of compliance with EU law), they resorted to an old Roman-law doctrine ("dolo agit qui petit quod statim redditurus est") that means you're not allowed to claim what you'd have to return immediately for some other legal reason. And that other legal reason (for which one is not allowed to seek injunctions over SEPs) would be an antitrust violation.

  The original German Orange-Book-Standard doctrine was based on a case where there wasn't even a FRAND pledge. It was a de facto standard. Later, the Court of Justice of the EU brought a bit more balance into that analysis with its Huawei v. ZTE decision, which is also based on antitrust law (based on "settled case-law that the exercise of an exclusive right linked to an intellectual-property right by the proprietor may, in exceptional circumstances, involve abusive conduct for the purposes of Article 102 TFEU," which is the unilateral-conduct paragraph of EU law).

I was never completely satisfied with either jurisdiction's problem-solving approach--and I don't just mean the details of how to implement it, but structural limitations:

• Why not have the best of both worlds?

  • U.S. courts can solve the SEP injunction problem on the basis of contract law whenever there is a FRAND commitment, but what if there isn't because one or more companies created a standard without making a FRAND pledge? Then you need to resort to antitrust law. Even when you don't need it, why not let it serve as another deterrent to prevent SEP abuse?

  • EU/German judges can't legislate from the bench and enrich their laws with enforcement rights for third-party beneficiaries. But in cases where a FRAND pledge has been made, a breach of that commitment could be held against a SEP abuser in addition to all other considerations, such as on the basis of considering it particularly malicious and deceptive conduct to make a public statement that encourages others to implement a standard only to renege on it later.

• The actual starting point of the problem is neither unilateral abusive conduct after the adoption of a standard nor a FRAND pledge. It starts with the fact that a group of companies sits at a table to agree on a standard that is, by definition, exclusionary: exclusionary with respect to alternative technologies. Of course, standardization can be beneficial. But without a FRAND pledge, it wouldn't be. That's why some regulators such as the EU Commission make it pretty clear in their horizontal-cooperation guidelines that standards development may be a great thing, but only if all contributors make FRAND licensing promises. In other words, the upside of standard-setting may outweight the downside of inevitably excluding alternative technologies--but while you may be allowed to exclude competing technologies, regulators are not going to let you exclude competing companies (they must at least have access to a license on FRAND terms).

  A FRAND pledge is not just a contract like any other. It's a contractual commitment that is needed to legalize what would otherwise be an illegal cartel.

  Exclusionary use of SEPs, be it through the enforcement of injunctive relief or a refusal to extend licenses, is not just unilateral conduct. It's an abuse of rights that are rooted in a process that involves the creation of a cartel.

In Aspen Skiing, you had one company operating three resorts in an area, and the smaller player having just one. But the big bully on the block simply had the financial strength to build in part and acquire in part those three resorts--as opposed to having gotten into that high-leverage position by means of initially participating in a cartel, legalizing it through a FRAND pledge, and later reneging on the pledge.

What I miss in the FTC v. Qualcomm component-level licensing context is the cartel-based background of FRAND-pledged SEPs. Again, the whole reason why regulators require the FRAND pledge (because otherwise they might go after standard-setters even before they ever assert an essential patent) is to ensure that other companies are not excluded from the market. Apart from the often rather clear language of FRAND pledges, it follows from that "exclude technologies, but don't exclude companies" logic that SEPs must be licensed to all comers at all levels of the supply chain.

The CJEU in Huawei v. ZTE and the DOJ in the Motorola Mobility contexts made the availability of injunctive relief over SEPs subject to an analysis of both sides' conduct: hold-up vs. hold-out. That's how they sought to strike a balance between the exclusive nature of patent rights and the anticompetitive effects of SEP abuse. It's one of the most fundamental conflicts one can imagine: antitrust law is anti-monopoly law, while patents are monopolies. That's why compulsory licensing is sometimes inevitable.

In the EU, Microsoft was subjected to compulsory IP licensing with respect to a Windows network protocol long before the more recent wave of SEP cases. And even in the U.S., there's an interesting precedent that I only learned about from the Congressional research paper mentioned above: the May 2002 final judgment in United States v. 3D Systems Corp. and DTM Corp., a merger case (okay, the third major pillar of competition law--after unilateral conduct and cartels--that comes up here). The DOJ's Antitrust Division approved an acquisition subject to a divestiture, and in order to make sure that patent enforcement wouldn't render the divestiture useless from a competition point of view, the primary defendant was obligated to extend IP licenses to a future acquirer of the unit to be divested.

It's not a Supreme Court duty-to-deal precedent like Aspen Skiing, but it is very interesting. And it happened under a Republican administration (Bush 43).

This is already a fairly long blog post, and all I actually wanted was to add a broader perspective to the question of compulsory SEP licensing to competing component makers. Considering the reason for which the participants in standard-setting processes feel forced to make a FRAND licensing promise in the first place, there really is a pressing need under competition law to ensure that someone like Qualcomm must grant SEP licenses on FRAND terms to rival chipset makers, regardless of whether or not there had been some voluntary and profitable course of dealing that was discontinued at some point.

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