The Eastern District of Texas recently addressed two significant
issues related to fair, reasonable and non-discriminatory (FRAND)
negotiations under French law; namely, whether: (1) an implementer
is entitled to damages resulting from a standard essential patent
(SEP) holder’s bad faith; and (2) an SEP holder can
unilaterally discharge its FRAND obligations in view of an
implementer’s bad faith.
This case involves G+ Communications, a 5G SEP holder and
Samsung Electronics, a 5G standard implementer. The European
Telecommunications Standards Institute (ETSI) and the 3rd
Generation Partnership Project (3GPP)–both standards setting
organizations (SSOs)–developed the 5G standard. ETSI’s
Intellectual Property Rights Policy (IPR Policy) mandates that
participants in the ETSI SSO declare all SEPs and irrevocably
commit to negotiate in good faith and license the SEPs on…
