Apple could face UK sales ban over FRAND agreement
Apple could be hit with a sales ban in the UK if it refuses to accept a licence on fair, reasonable, and non-discriminatory (FRAND) terms, the High Court of Justice has ruled in the tech company’s latest court case with Optis.
The two companies are embroiled in a global dispute regarding the licensing of Optis' standard-essential patents (SEPs) portfolio. In June, the English High Court found that one of Optis' unexpired patents was valid and infringed, but Apple is appealing this verdict.
An ‘unwilling licensee’
Justice Richard Meade handed down the decision on Tuesday, September 27, in which he concluded that Apple must accept the terms of the agreement even before they are determined during a trial scheduled for June 2022.
“Apple is liable to be injuncted from infringing the patent that I found valid and infringed in Trial B. I will consider whether in fact to grant an injunction once Apple has had a chance to consider this judgment and decided whether to offer some undertaking,” said Justice Meade.
The SEP owner had successfully argued before Justice Meade that Apple's refusal to accept the court-determined FRAND licence made the tech company an unwilling licensee that should face an injunction.
Apple countered that it should be able to see the terms of the FRAND licence that will be decided by the court next year before it decides whether to accept it or not. Apple also held that Optis' had contravened competition which meant that its bid to seek an injunction should be denied. But the court found in favour of Optis.
The company’s latest victory against Apple follows its patent infringement win against the tech giant in a Texas retrial last month, where it secured $300 million in damages.
Unwired Planet effects
In his summation this week, Justice Meade cited case law in Unwired Planet, finding that once a UK SEP has been found valid, the infringer must accept a licence even before it has seen the terms to avoid breaching the law or face a potential ban.
According to an article posted by law firm Simmon & Simmons, the ruling means “that the injunction granted against the implementer will be a standard FRAND injunction”, prohibiting the implementer “from infringing the patent unless and until the implementer enters into a FRAND licence”.
The ruling also determined that even if a SEP owner has acted in an anti-competitive way this does not prevent it from seeking a FRAND injunction.
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