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Recent development of FRAND guidelines in German courts

Date: 13 March 2020

 

Technical standards play an important role, especially in the telecommunications sector, as they enable the interoperability of products. Standard Essential Patent (SEP) owners therefore have a powerful monopoly position.

 

Antitrust law stipulates that a patent owner is not allowed to abuse his dominant market position. In the context of a patent infringement dispute, the defendant can therefore raise the objection of abuse of a dominant market position and demand the granting of a license on FRAND terms. FRAND means “fair, reasonable and non-discriminatory”. The FRAND issue is extremely complex, not least because the procedures are usually shaped by an international context.

 

After the European Court of Justice (ECJ) in its Huawei/ZTE decision in 2015 gave the SEP owner and the licence seeker behavioural obligations in the FRAND negotiations, in recent years a large number of court decisions have been issued in Germany concerning the FRAND objection.

 

In the last year, several decisions by the German Higher Regional Courts have also contributed to the clarification of various practical issues. In addition, the Munich Regional Court I recently published guidance on the handling of the FRAND objection within the Munich proceedings.

 

Dr. Michael Nielen and Dr. Ulrike Zorr from our Freiburg team have analysed and summarised the current higher regional court case law from the last year.

 

Their article is written in German and published in the GRUR-Prax-Magazine GRUR-Prax 2020, p. 73-75, issue 5 

 

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