Huawei v Netgear (UPC_CFI_9/2023)

• Huawei brought direct and indirect infringement claims against Netgear in relation to its patent that was declared essential to IEEE for the WiFi 6 standard. The defendants, Netgear, were various group companies that manufactured, sold, distributed and operated online shops relating to their network products. The defendants denied infringement and filed counterclaims for revocation. They also pleaded a FRAND defence based on EU competition law.
• The Munich LD found Huawei's patent valid and infringed. As such, the court issued a permanent injunction because there was a risk of recurrence due to Netgear's past infringing acts in the relevant UPCA contracting member states. The court ordered Netgear to give information and render accounts regarding their infringing activities, remove the infringing embodiments from the channels of commerce and hand them over to a court bailiff for destruction, with the exclusion of products equipped with a Qualcomm modem placed on the EU market within a certain period.
• In considering Netgear's FRAND defence based on EU competition law, the Munich LD took a similar approach to the Mannheim LD in Panasonic v Oppo, which largely followed the approach of the German courts. The Munich LD set out the principles laid down by the CJEU in Huawei v ZTE that underpin FRAND negotiations, noting that a purely economic determination of the amount of the licence without taking into account the relevant conduct of the parties in the negotiations cannot be upheld under European law.
• In applying the Huawei v ZTE principles to this case, the Munich LD found that Netgear had not signalled a sufficient willingness to license after receiving the infringement notice from Huawei. The Munich LD said Netgear delayed negotiations, rejected Huawei's offer without providing a valid counteroffer, and did not provide any security or sufficient information. It also found that Netgear failed to demonstrate that the patent in suit conferred on Huawei a dominant position in the market. Huawei had complied with its FRAND obligations.

This analysis is based on a machine translation of a decision not available in English.