Alexander Prenter

Some months ago, two courts in Germany granted injunctions against Oppo, one based on a standard essential patent (SEP), and another on a non-SEP related to Wi-Fi. Rather than cave to the demands of Nokia, Oppo has since decided to pull its products out of the German market. Since then, some commentators have claimed that this is another example of so-called “implementers” engaging in hold out. They point to the need for strong injunctive relief in order to force these “unwilling” licensees to the table.

In a June 4 op-ed to IPWatchDog, James Edwards launched a scathing attack against Judge Koh and her 233-page ruling, which found Qualcomm to have engaged in anticompetitive behavior against competitors within the cellular chipset market. However, just as Mr. Edwards claims Judge Koh failed in her undertaking, so too has Mr. Edwards by ignoring the context and facts of the case. His argument against Judge Koh, deliberately or otherwise, does not mention the fact that this case involved the licensing of standard essential patents (SEPs) subject to the FRAND commitment, a contract between the patent holder and the standard setting organization to license the relevant patents on “fair, reasonable, and non-discriminatory” terms. Indeed, Mr. Edwards makes no mention of standard essential patents in a deliberate attempt to obfuscate the facts and fit a narrative that intellectual property rights writ large are under attack by this decision.