Confidentiality in SEP/FRAND Cases – A Critical Overview of the Recent Legal Developments

Abstract

The protection of confidential information looms large in the SEP/FRAND area. A paramount issue is the disclosure of existing license contracts to show, in negotiations or in court, the FRAND compliance of a license offer. Disclosing third-party licenses does, however, come at a cost: On a content level, such contracts oftentimes contain business secrets which neither the licensor nor the licensee wish to share. On a legal level, third-party licenses will usually contain confidentiality clauses prohibiting both parties from disclosing the contract. These aspects create an intricate tension between public and party interests. Against this background, the paper analyzes the existing case law and literature in as well as outside the SEP/FRAND context, points out recent legislative developments, and suggests some improvements to the legal framework.

Keywords: SEP; FRAND; Huawei; ZTE; Delta; Zyxel; confidentiality; confidentiality club; non-disclosure agree-ment; NDA; external eyes only; in camera; comparable licenses; Trade Secrets Directive