If you've followed the Optis & others v Apple saga, you must have seen the judgment handed yesterday by the Court of Appeal, about the question of "willingness" as a licensee, and whether if after a declared SEP was found valid, essential and infringed, an injunction should follow.
The Court of Appeal was unimpressed by the arguments raised by the parties, and dismissed the parties' appeals. Having written a longer analysis of the ruling elsewhere, I thought I'd list here quickly some key points:
- Any person interested in implementing an ETSI standard must be entitled to have a FRAND licence on demand to a patentee that has given the relevant undertaking, so Apple could not be permanently deprived of the right to enforce Optis' FRAND obligation (and could later change its mind if it didn't exercise that right now).
- However, clause 6.1 did not change the fact that a party without a licence may be injuncted, albeit it would be a FRAND injunction.
- The time to make that election to avoid an injunction was following the finding of a valid, essential and infringed SEP.
- There are various factors of relevance to whether a FRAND injunction should be granted, but (with some exceptions), if a SEP owner is willing to give a binding commitment to accept the Court's FRAND determination then that was a strong factor in favour of an injunction.
Lord Justice Arnold's postscript is probably the most interesting part of the judgment (and one that reflects the general tone). See it in full below.
You can read more about the grounds of appeal and what the judge ruled on in my article here.