Huaweï v. ZTE: Judicial Conservatism at the Patent-Antitrust Intersection

This paper argues that the judgment of the Court of Justice of the EU in Huaweï v ZTE is of conservative craft. Huaweï v ZTE only extends by a razor-thin margin the zone of antitrust liability for patent owners. The Court appears reluctant to relax its traditional case-law that affirms antitrust liability on patent owners only in “exceptional circumstances.” To be sure, the Court admits that SEPs covered by a FRAND pledge generate “particular circumstances,” which justify an extension of antitrust liability. But on careful read, the Court only expands antitrust liability in relation to a slice of cases of injunctions on FRAND-pledged SEPs that lead to exclusionary leveraging. This, in turn, relieves a number of upstream licensing entities from antitrust liability.