In an eagerly awaited judgment, handed down on July 16, the Court of Justice of the European Union (CJEU) ruled on the Huawei v ZTE case. SEPs are required to be licensed on fair, reasonable and non-discriminatory (FRAND) terms. The CJEU added that if the SEP owner has given an “irrevocable undertaking” to grant a licence to third parties on FRAND terms, it would not be an abuse of dominance to seek an injunction.

But the CJEU said this can only be done as long as, before bringing the action, the patent owner has alerted the other party about the alleged infringement and, secondly, presented a FRAND licensing proposal. If the alleged infringer continues to use the patent in question, the court said, it will be viewed as not having “diligently responded” to that offer.