Philips v Wiko (Gerechtshof Den Haag, 200.219.487/01, 2019)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

The Hague Court of Appeal enjoined Wiko from infringing in the Netherlands a Philips patent declared essential to the UMTS standard, and rejected the FRAND defence. The Huawei v ZTE steps are read as guidelines for good-faith negotiation rather than rigid rules: as Wiko had not shown itself willing to take a licence before the proceedings, Philips was entitled to sue, and willingness shown after service does not make the action abusive in hindsight. The court also refused to stay pending German proceedings in which the same defence had succeeded.

Facts and procedure

Philips declared EP 1 623 511, essential to the HSUPA protocol of the UMTS standard, to ETSI, following a general FRAND declaration of 1998 (point 4.6). It notified Wiko in 2014 and on 28 July 2015 sent it a licence offer with claim charts, which went unanswered (points 2.1, 2.2 and 4.16). Served on 19 October 2015, Wiko made a counter-offer only on 25 August 2016 (points 2.3 and 2.4). The District Court had annulled all three patents relied on; by an interim judgment of 16 April 2019, the Court of Appeal held EP 511 valid as amended by the second auxiliary request and infringed (points 1.1, 3.1 and 4.29). The Mannheim Regional Court had upheld Wiko’s FRAND defence on 2 March 2018 in later German proceedings on a different patent (point 4.1).

The applicable law

The court applied Article 102 TFEU as interpreted in Huawei v ZTE (paras 61 to 66), summarising its steps (points 4.7 to 4.13), together with Articles 29 and 30 of Regulation 1215/2012 on lis pendens and related actions (point 4.1).

Question

Does an essential patent holder abuse its position by seeking an injunction against an implementer that showed willingness to take a licence only after service, and must the Dutch court stay pending the German ruling on the FRAND defence?

Decision

The court rejected lis pendens and related actions: the claims concern national parts of different patents, and only the claims, not the defences, are compared (point 4.1). It declined to refer questions to the CJEU or to stay (point 4.4). The Huawei v ZTE steps are guidelines, and abuse is assessed on the facts (point 4.14). The duty to make an offer arises only once the notified implementer has shown willingness, which Wiko did not claim for the period before the proceedings (point 4.15). Willingness shown after service can at most lead to parallel negotiations, without making the action abusive or requiring the patentee to suspend it (point 4.21). The court departed from the German court’s view that the patentee must substantiate its offer (points 4.18 and 4.22). Wiko failed to prove that Philips’s offer was not FRAND (point 4.25), its own counter-offer was not FRAND (points 4.38 to 4.42), and no abuse was established, so that dominance need not be decided (point 4.45). An injunction was granted with recall, destruction and penalty payments (points 5.1 to 5.5).

Key points for practice

• Willingness is assessed before the proceedings are brought: a late counter-offer does not neutralise an action already on foot (points 4.15 and 4.21).
• Huawei v ZTE does not require the patentee to justify why its offer is FRAND or to disclose its other licences (points 4.18 and 4.19).
• A FRAND defence upheld in another Member State does not ground lis pendens or a related-actions stay where the patents and territories differ (point 4.1).
• Practical point: a notified implementer should respond promptly and declare itself willing to take a licence before any action, failing which the FRAND defence becomes very hard to sustain in the Netherlands.

Provisions applied

Treaty on the Functioning of the European Union

Art. 102

Regulation (EU) No 1215/2012

Arts 29 and 30

Other provisions

Regulation (EC) No 1/2003, Art. 2; FRAND declaration to ETSI

National law

Art. 150 Rv

Case law cited

CJEU, Huawei v ZTE (C-170/13); CJEU, C-111/01 and C-39/02; European Commission, COMP/M.6381 (Google/Motorola Mobility); High Court, 7 June 2017, and Court of Appeal, 23 October 2018, Unwired Planet v Huawei; LG Mannheim, 25 November 2016 and 2 March 2018; OLG Karlsruhe, 31 January 2017

Related decisions

• Huawei v ZTE, 16 July 2015, CJEU judgment whose scope the court clarifies.

Prepared by Dhenne Avocats from the text of the decision (rechtspraak.nl open data service), consulted on 11 October 2026. Only the official text is authoritative.