FRAND Defence - Conclusions

The ECJ’s decision will have a significant impact on the way patent owners as well as standard users will approach SEPs in the future. A general framework has been set by the CJEU: On the one hand, the patent owner’s obligation is to alert the infringer and to provide a FRAND offer prior to seeking an injunction. On the other hand, standard users need to react diligently and in good faith. It makes it crucial for both sides to deal with the requirements set by the ECJ thoroughly, not only during already pending patent infringement proceedings and preferably well in advance of a potential litigation.