It seems that the long-awaited clarification by the Court of Justice of the European Union (CJEU) on a number of open issues related to standard essential patent (SEPs) will have to wait a little longer after all.
Nokia and Daimler have indeed just announced in a joint press release that they have signed a patent licensing agreement, bringing an end to a dispute started in 2019 after initial licensing talks had failed. Under the agreement, whose terms remain confidential, Nokia licenses mobile telecommunications technology to Daimler and receives payment in return. The parties have also agreed to settle all pending litigation, including the complaint by Daimler against Nokia to the European Commission and the patent infringement case brought by Nokia before the Düsseldorf Regional Court which gave rise to the referral to the CJEU reported in our previous article (see also here for the official translation of the referral and the related order which has in the meantime been made available on the CJEU website).
The withdrawal of the case before the German national court entails that the Luxembourg judges will not be able to rule on the referred questions, which concerned not only the issue of component level licensing, but also a number of further major open issues dealt with by the previous case law (including i.a. confirmation that the implementer can make up without prejudice in the course of legal proceedings for duties of conduct that were not met in the pre-litigation phase, and a clarification as to whether the implementer’s unwillingness can be found without prior examination of whether the SEP holder’s own license offer was actually FRAND). The news of the settlement thus comes as a setback for the IP community which was looking forward to a new decision of the CJEU after Huawei v. ZTE, to clarify some of the still outstanding FRAND-related issues.
This new development and the open issues in the SEP world will be extensively discussed in the coming weeks and months. For example, the 3 days online conference entitled “6th IP and Competition Forum – A New World Order for FRAND” organized by OxFirst will have sessions focusing on the matters which were at the hearth of the CJEU referral such as component-level licensing and the details of the FRAND defences, as well as global FRAND rates-setting, anti-suit injunctions and proportionality of injunctions. Free tickets are still available through application with Oxfirst.