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Updated 23 January 2018
Updated 23 January 2018
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Updated 26 January 2017
Updated 3 December 2018
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23 April 2015 - Case No. 6 U 44/15
The proceedings related to the defendant’s application to the Higher Regional Court of Karlsruhe for a stay of execution of the decision of the District Court of Mannheim (Case No. 2 O 103/14, 10 March 2015). The background was the alleged infringement of patent EP 1.125.276.B1, which covered technology for coding broadband signals which is essential for the ETSI AMR-WB standard.
The defendant was a major German telecommunications company (Deutsche Telekom). Intervenor 1 and intervenor 2 were smartphone manufacturers (HTC and others) whose products used the AMR-WB standard. These phones were supplied to the defendant and then sold to consumers as part of the defendant’s contract plans.  The claimant, a German non-practicing entity, Saint Lawrence, became owner of the respective SEP in August 2014.  The previous owner of the SEP had declared its willingness to grant licenses on FRAND conditions several times.  The defendant had shown no interest in such a license.  After commencing infringement proceedings in the District Court of Mannheim, the claimant contacted intervenor 2 for the first time. Intervenor 2 signed a confidentiality agreement on 23 February 2015, rejected an initial offer made by the claimant, and made a counter offer. On 25 March 2015 (after the decision of the District Court of Mannheim), the claimant made another offer, which intervenor 2 also rejected.
2. Ensuing Decisions
On 10 March 2015, the District Court of Mannheim granted an injunction. Inter alia, it held that the defendant had not attempted to enter into negotiations for a license.  In particular, the court considered it irrelevant that intervenor 2 might have demonstrated its willingness to enter into a license on FRAND conditions. In the eyes of the court, the relevant issue was whether the claimant had a right to demand an injunction to stop the defendant using the patent. Even if an intervenor could successfully raise a competition law based defence relying on the Federal Court of Justice decision Orange Book Standard,  this was of no relevance for the relationship between the claimant and the defendant. 
The defendant and intervenor 1 applied to the Higher Regional Court of Karlsruhe to stay the execution of the District Court decision. Under the German rules of civil procedure, the Higher Regional Court can grant a stay of execution only if an appeal is pending and it is probable that the challenged decision will be overturned on the basis that it appears manifestly erroneous.  Alternatively, the Higher Regional Court can grant a stay of execution if the defendant can prove that the execution would cause particularly severe harm beyond the usual effects of an execution. 
The Higher Regional Court of Karlsruhe granted the defendant’s application to stay the execution regarding the smartphones manufactured by intervenor 2, but dismissed the application made by intervenor 1.  It held that it would be sufficient for a successful competition law based defence that an intervenor is willing to enter into a license agreement.  Since the District Court of Mannheim had dismissed the intervenors’ willingness as irrelevant for the case, the resulting decision was manifestly erroneous.  Significantly, the Higher Regional Court required the defendant to make a deposit of EUR 5 million into the court to safeguard the claimant’s financial interests.
B. Court’s Reasoning
Importantly, the decision was handed down in April 2015 and thus several months prior to the CJEU Huawei/ZTE ruling. The Higher Regional Court stated that the final opinion of Advocate General Wathelet  was the legal basis of its decision. 
The Higher Regional Court reasoned that a patent holder could seek injunction orders against any business in the supply chain of the product that infringes the respective SEP – which includes manufacturers (such as the intervenors) and distributors (such as the defendant). In principle, according to the Federal Court of Justice decision Tripp-Trapp-Stuhl,Federal Court of Justice, 14 May 2009, Case No. I ZR 98/06. the decision against whom to bring proceedings lies with the patent holder.  However, according to the Higher Regional Court, this was not the issue in this case. The issue was whether the patent holder was abusing its dominant market position by commencing proceedings against the defendant. The only relevant question is whether this is conduct that deviates from ‘normal’ competition behaviour, being detrimental to consumer interests. If the SEP holder has made a FRAND declaration in the past and is typically entering into license agreements with manufacturers, then the court could see no objective reason why the SEP holder would only bring proceedings against the distributor.  In contrast, there is a reasonable expectation that the SEP holder makes an offer to the manufacturer of the relevant product first. Bringing proceedings against distributors would put significant pressure on the manufacturer. This can distort the license negotiation because distributors will have little interest in legal arguments with patent holders. If a patent holder is a dominant undertaking, exerting such pressure constitutes an abuse of market power.  In addition, bringing proceedings against distributors whilst granting licenses to manufacturers in other cases is inconsistent behaviour. 
C. Other Important Issues
The Higher Regional Court pointed out that the claimant was a non-practising entity. Accordingly, by exercising its patent rights it is not protecting its own market share in the market for smartphones.  In contrast, it is in the claimant’s objective interest that as many mobile phones using its SEP from numerous manufacturers are present in this market. Moreover, it is unlikely that a stay of execution would jeopardise the claimant’s financial interests. A deposit made by the defendant into the court should be a sufficient safeguard.  On the other hand, an execution of the decision at first instance would cause considerable harm to the defendant. As a telecommunications company, the defendant relies on a comprehensive portfolio of mobile phones that it can offer to consumers.  Removing the devices manufactured by intervenor 2 from the portfolio would be a significant blow to the defendant’s core business. Moreover, a removal would also be detrimental for intervenor 2 because a major distribution channel for its smartphones would become inaccessible.  As a result, the defendant’s interest in staying the execution outweigh the interests of the claimant.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 2.
-  Landgericht Mannheim, 10 March 2015, 2 O 103/14, para 27.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 3.
-  Bundesgerichtshof, 6 May 2015, KZR 39/06.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 6.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 17.
-  OLG Karlsruhe, 8 September 2016, 6 U 58/16, para 38. After lodging the application, the claimant and intervenor 1 had reached a settlement agreement. As a result, intervenor 1 had withdrawn its appeal to the Higher Regional Court of Karlsruhe. Thus, in the eyes of the court, no stay of execution was required.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 19.
-  GA Wathelet, 20 November 2014, C-170/13.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 20.
-  Federal Court of Justice, 14 May 2009, Case No. I ZR 98/06.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 21.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 25.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 26.
-  OLG Karlsruhe, 23 April 2015, 6 U 44/15, para 27.
Updated 23 January 2018
English court decisions
5 April 2017 - Case No. HP-2014-000005
The claimant is a company that grants licenses for patented technologies in the telecommunications industry. The patents at issue (EP (UK) 2 229 744, EP (UK) 2 119 287, EP (UK) 2 485 514, EP (UK) 1 230 818, EP (UK) 1 105 991, EP (UK) 0 989 712) relate to telecommunication network coding and procedures.  Most were part of a large patent portfolio that the claimant had acquired from a major telecommunications company in 2013.  In 2014, the claimant made a declaration under the ETSI IPR Policy that it was willing to grant licenses on FRAND terms. There were five technical trials relating to the validity, infringement and essentiality of these patents. This summary focuses on the non-technical trial addressed competition law issues, FRAND issues, injunctive relief and damages for past infringements. 
In April 2014 the claimant made an open offer to the defendant, a major international smartphone manufacturer, to grant a license in respect of the claimant’s entire global patent portfolio (containing SEPs and non-SEPs). The defendant refused the offer, contending that there was no patent infringement, that the patents were not essential, and that they were invalid. The defendant also argued that the offer was not FRAND and thus did not constitute an abuse of a dominant market position under Art. 102 TFEU. In July 2014 the claimant made a further offer, limited to the claimant’s SEPs. Again, the defendant refused, arguing that the license conditions were not FRAND.  In June 2015 both parties made further offers. These offers were the result of directions from the court. The claimant offered a worldwide portfolio license while the defendant wanted to limit the territorial scope to the United Kingdom.  Between August and October 2016 the parties exchanged further offers without reaching an agreement. 
The Patents Court (Birrs J) held that the claimant was in a dominant position, but did not abuse this position.  The defendant was not prepared to take a license on FRAND conditions and the claimant was not in breach of competition law. Thus, the court held that a final injunction to restrain patent infringements should be granted. An injunction for infringements of patents EP (UK) 2 229 744 and EP (UK) 1 230 818 was granted on 7 June 2017. 
B. Court’s Reasoning
1. Market Power
The court defined the relevant market for assessing dominance as a distinct market for licensing each SEP individually.  European case law indicated that owning an SEP could be a rebuttable presumption for the existence of a dominant position.  The claimant’s pleaded position was a non-admission of dominance rather than a denial coupled with a positive case to the contrary. It was the view of the court that this was insufficient to rebut the presumption. In particular, the claimant’s argument of countervailing buyer power was unconvincing because it had not been supported by a proper economic analysis. 
2. SEP Proprietor’s Licensing Offer
a. FRAND Declaration as Conceptual Basis
The court pointed out that that the FRAND undertaking also applied in the case that the SEP proprietor was not in a dominant position. It held that the FRAND undertaking operated as a practical constraint on a SEP owner’s market power.  The ETSI declaration made by the SEP proprietor is also the starting point for determining the FRAND rate. The underlying issue, which is discussed at length by the court,  is if such a declaration forms a contract and whether that contract can benefit third parties. The court acknowledged that the legal effect of this declaration, in particular its enforceability, is a controversial issue under French law.  However, the court reasoned that the FRAND declaration is an important aspect of technology standardisation. Holders of SEPs are not compelled to give a FRAND declaration. If they do, the undertaking would be enforceable and irrevocable due to public interest. 
The court applied a procedural approach to FRAND. It emphasised that FRAND describes not only a set of license terms, but also the process by which a set of terms are agreed.  It applies to both the SEP-holder and the implementer/defendant. In particular, this approach allows for starting offers that leave room for negotiation. On the other hand, making extreme offers and taking an uncompromising approach which prejudices fair, reasonable, and non-discriminatory negotiation is not a FRAND approach.  This approach also means that the SEP proprietor is under an obligation to make a FRAND offer and to enter into FRAND license agreements. 
b. ‘True FRAND Rate’
The court considered that there is only a single set of terms for a given set of circumstances that would meet FRAND conditions (‘true FRAND rate’).  This eliminates the so-called Vringo-problem,  i.e. if FRAND were a range there would be two different but equally FRAND offers. Thus, if the court would grant or not an injunction, it would be unfair for the alleged infringer or SEP holder respectively. 
The court was of the opinion that the true FRAND rate approach does not cause problems under competition law. Theoretically, if only one set of terms is truly FRAND, and if FRAND also represents the line between abusive and non-abusive conduct under Art. 102 TFEU, then every agreed SEP-licence could be at serious risk of being abusive.  However, the court took the view that FRAND-compliance and compliance with Art. 102 TFEU are not the same thing (the court pointed out that the CJEU in the Huawei ruling appears to equate an obligation to make a FRAND offer with compliance with Art 102 TFEU).Unwired Planet v. Huawei  EWHC 711(Pat), para 154./span> Since Art. 102 TFEU condemns excessive pricing,  a royalty rate can be somewhat higher than the true FRAND rate and still not be contrary to competition law. Conversely, for a breach of competition law, it will be necessary but not sufficient that the rate is not the true FRAND rate. 
The court held that the correct approach is to start from a global rate as a benchmark and to then adjust this rate as appropriate.  It distinguished between two concepts of discrimination. First, the ‘general’ concept of non-discrimination describes an overall assessment of FRAND which can be used to derive the benchmark mentioned above.  It is based on the intrinsic value of the patent portfolio, but it does not depend on the licensee. The court held that this benchmark should be applied to all licensees seeking the same kind of license. 
Second, the ‘hard-edged’ non-discrimination obligation, which takes into account the nature of the potential licensee,  is a distinct concept that could be used to adjust license terms. However, the court held that the FRAND declaration does not introduce such a hard-edged non-discrimination concept.  If, contrary to the view taken by the court, the FRAND undertaking did include hard-edged non-discrimination, a licensee could only have the right to a lower rate granted to another licensee (i.e. a specific non-discrimination obligation resulting from the FRAND declaration) if the difference would otherwise distort competition between the two licensees. 
d. Territorial Scope of License
The court held that the defendant’s offer that was limited to UK licenses was not FRAND. In the court’s opinion country by country licensing is inefficient for goods such as mobile telecommunications devices that are distributed across borders.  It would also be inefficient to negotiate many different licenses and then to keep track of so many different royalty calculations and payments. No rational business would do this, if it could be avoided.  This was illustrated by the fact that the vast majority of licenses introduced in the trial were worldwide licenses.  Further, it is common ground that the industry assesses patent families rather than individual patents within the family. Assessing portfolios on a family basis inevitably involved tying a patent in one jurisdiction with a patent in another.  Thus, according to the court, a worldwide license would not be contrary to competition law. As willing and reasonable parties would agree on a worldwide licence, the insistence by the defendant on a license which was limited to the UK was not FRAND. 
C. Other Important Issues
1. Comparable agreements and reasonable aggregate royalty rate
The court held that for determining the royalty rate, the evidence of the parties would be relevant, including evidence of how negotiations actually work in the industry.  Other freely-negotiated license agreements might be used as comparables.  This may be compared with a top down approach  can also be used in which the rate is set by determining the patentee’s share of relevant SEPs and applying that to the total aggregate royalty for a standard, but this may be more useful as a cross-check.  Royalty rates determined by other courts might be useful as persuasive precedents. However, in the eyes of the court, a license rate determined at a binding arbitration does not carry much weight as to what parties are usually paying.  License agreements must meet certain criteria to be comparable.  First, the licensor is the claimant. Second, the license agreement is recent. However, it is not necessary that the licensee is the defendant or a comparable company because different market participants have different bargaining powers, which is reflected in the negotiations and the resulting royalty rates.  Finally the court confirmed that a royalty based on the handset price was appropriate and implied a reasonable aggregate royalty rate of 8.8%of the handset price. The court found that the 8.8% was reasonable, in part, because the aggregate implied by either party’s case was higher (10.4% and 13.3%). 
2. Principles derived from Huawei v. ZTE
The court also provided a compiled overview of its interpretation of the Huawei v. ZTE ruling.  In the eyes of the court, the ‘willingness to conclude a licence on FRAND terms’ refers to a willingness in general. The fact that concrete proposals are also required does not mean it is relevant to ask whether the proposals are actually FRAND or not. If the patentee complies with the procedure as set out by the CJEU, then bringing a claim for injunction is not abusive under Art 102. But even if sufficient notice is given, bringing a claim can constitute an abuse because complying with the procedure does not mean that a patentee can behave with impunity. In other words, there might be other aspects that make the claim abusive. Conversely, bringing such a claim without prior notice will necessarily be abusive.Significantly, the court held, the legal circumstances of this case differ from the circumstances assumed by the CJEU in a crucial respect. A FRAND undertaking can be effectively enforced irrespective of Art 102. The defendant does not need Art 102 TFEU to have a defence to the injunction claim.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 2.
-  Unwired Planet v. Huawei  EWHC 711(Pat), paras 54 et seqq.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 3.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 5.
-  Unwired Planet v. Huawei  EWHC 711(Pat), paras 7-8.
-  Unwired Planet v. Huawei  EWHC 711(Pat), paras 11-14.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 807.
-  Unwired Planet v Huawei, EWHC 1304 (Pat).
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 631.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 634.
-  Unwired Planet v. Huawei  EWHC 711(Pat), paras 636-646.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 656.
-  Unwired Planet v. Huawei  EWHC 711(Pat), paras 108-145.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 146.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 162.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 163.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 159.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 164.
-  See Vringo v ZTE  EWHC 1591 (Pat) and  EWHC 214 (Pat).
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 158.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 152.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 154./span> Since Art. 102 TFEU condemns excessive pricing,Unwired Planet v. Huawei  EWHC 711(Pat), para 153. a royalty rate can be somewhat higher than the true FRAND rate and still not be contrary to competition law. Conversely, for a breach of competition law, it will be necessary but not sufficient that the rate is not the true FRAND rate.Unwired Planet v. Huawei  EWHC 711(Pat), para 153.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 153.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 176.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 177.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 503.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 501.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 544.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 534.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 546.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 572.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 171.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 170
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 178
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 806 (10)
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 175.
-  Unwired Planet v. Huawei  EWHC 711(Pat), para 476.
-  Unwired Planet v. Huawei  EWHC 711(Pat), 744.
Updated 26 January 2017
19 January 2016 - Case No. 4b O 120/14
Since 7 March 2014 Claimant, a non-practicing entity, is the proprietor of European patent EP D, allegedly covering a feature of the GSM standard, originally granted to the Intervener, and subsequently transferred to company “I”. Defendants, belonging to the K-group, produce and market GSM- and UMTS-based devices.
In an agreement as of 26 October 2011, the Intervener granted a worldwide non-exclusive license to Qualcomm Inc., being, in turn, allowed to grant sub-licenses to its customers. Furthermore, by agreement as of 1 February 2014 one of the Defendants was granted a worldwide, non-exclusive license to patents owned by the Intervener.
On 10 January 2013, the Intervener concluded a so-called “Master Sales Agreement” (MSA), concerning the exploitation of a portfolio of more than two thousand patents, with “E”, “F” and its subsidiaries. Claimant became a party to the MSA later on. After its accession to the MSA, “I”, by assuming the existing FRAND obligation of the Intervener in accordance with the MSA, made a separate FRAND commitment towards ETSI on 14 June 2013 and declared, in an agreement as of 13 February 2013, to ensure that subsequent acquirers equally assume this obligation. Accordingly, after the transfer of patent EP D to Claimant the latter made, on 6 March 2014, a separate commitment towards ETSI declaring to be willing to grant licenses on FRAND terms with regard to, inter alia, patent EP D.
In order to implement the MSA the parties concluded three transfer agreements. Claimant argues that the Intervener validly transferred a part of its patent portfolio, including patent EP D, by agreement as of 11 February 2013 to undertaking “B”. On 13 February 2013, “B”, in turn, transferred the patent portfolio, including patent EP D, to “I”. After successfully requesting, on 3 September 2013, an amendment of the patent register, being performed on 24 October 2013, “I” transferred, on 27 February 2014, the patent portfolio, including patent EP D, to Claimant. Claimant successfully requested, on 7 March 2014, an amendment of the patent register which was performed on 3 July 2014.
As a reaction to Claimant’s public license proposal including a royalty of USD 0.75 per mobile device Defendants allegedly submitted a counter-offer but no licensing agreement was concluded.
- Court’s reasoning
- Market power
The court stressed that an application of Article 102 TFEU does not automatically result from SEP ownership but that it requires proof of a dominant position on the relevant market being conveyed by the SEP in question. Due to the fact that products not implementing the patent-in-suit could not effectively compete on the relevant market because of GSM being a key feature for such products market power of Claimant was affirmed. 
- Applicability of the Huawei rules to damages and the rendering of accounts
While the Huawei rules of conduct apply to actions for injunction, recall and destruction of products they are, in principle, not directly applicable to claims for damages and the rendering of accounts.  Nor is it necessarily abusive for a SEP proprietor to bring an action for damages and the rendering of accounts without having notified the standard implementer of an infringement and without having offered a FRAND license beforehand. The Huawei obligations do, however, have an indirect impact on the extent to which damages and the rendering of accounts are due: Where the SEP proprietor fails to grant a FRAND license although he has made a FRAND commitment and the standard implementer has expressed its readiness to take a license, damages are limited to the FRAND royalty level but only for the period after the SEP proprietor’s abusive refusal to license.  Claims for information and the rendering of accounts must, in this event, be limited to what is necessary for determining FRAND-based damages. 
- Cap on damages/rendering of accounts in casu
In casu Defendant could not show that he had complied with its Huawei obligation to sufficiently express its willingness to take a FRAND license. In consequence, no cap on Claimant’s claim for damages was deemed appropriate. 
- Market power
- Other important issues
Whether a SEP proprietor is free to enforce its patent in court or whether the proprietor is obliged to grant a FRAND license has to be determined under Art. 102 TFEU, not Art. 101 TFEU.  A FRAND declaration is not an unconditional offer made by the patent proprietor to enter into a licensing agreement with anyone willing to take a license, it merely expresses that the proprietor is, in principle, ready to grant a FRAND license if the patent in question conveys market dominance. As such, the FRAND commitment merely specifies a duty to license which competition law would impose anyway but it has an impact on the patent owner’s obligations under Art. 102 TFEU. 
As regards the transfer of a SEP from the original patent proprietor to a non-practicing entity, registration in the patent register in accordance with § 30 (3) PatG establishes—also with regard to claims for damages and the rendering of accounts—presumption of ownership, allowing the proprietor to enforce all rights derived from the SEP as long as the presumption has not been successfully rebutted by Defendants. The non-registration of “B” as an interim owner was considered irrelevant under the circumstances of the present case (but not generally). Case No. 4b O 120/14, para. I, 1-2
The MSA and the subsequent transfer agreements neither violate the German provisions on merger control (§§ 35-43 GWB) since, in any case, merger control thresholds are not reached.
Nor was a violation of the European provisions on anticompetitive agreements (Article 101 TFEU) or on the abuse of a dominant position (Article 102 TFEU) found. Case No. 4b O 120/14, para. I, 4, a-c In particular, the transactions did not aim at enforcing non-FRAND royalties or at discriminating between licensees and the agreements framing the transactions ensured that the acquirers of the relevant patents were bound by (the initial) FRAND commitments.  The acquirer of a SEP is neither obliged to continue the transferor’s licensing practice in an unmodified manner nor to implement exactly the same conditions in all licensing agreements, provided the conditions are FRAND and no unjustified discrimination takes place. It is not abusive in itself for a (former) SEP proprietor to split its portfolio and to transfer the parts to several acquirers, thereby trying to arrive at higher overall royalties being paid for the portfolio. Nor is a resulting increase in the number of licenses a standard implementer has to take per se inacceptable. However, licensing conditions are FRAND only if the cumulative royalty level resulting from the licensing of all pertinent SEPs is not excessive. Putting it differently, where the royalty level for the entire portfolio was below or at the lower end of the FRAND range, it is not abusive to arrive, by way of splitting the portfolio and licensing its parts separately, at a higher overall royalty level within the FRAND range. Furthermore, the transaction agreements did not amount to price fixing. 
-  Case No. 4b O 120/14, para. VII, 6, a
-  Case No. 4b O 120/14, para. VII, 6, b, aa, bb
-  Case No. 4b O 120/14, para. VII, 6, b, dd
-  Case No. 4b O 120/14, para. VII, 6, b, ee
-  Case No. 4b O 120/14, para. VII, 4
-  Case No. 4b O 120/14, para. VII, 5
-  Case No. 4b O 120/14, para. I, 4, b, aa
-  Cf. for details LG Düsseldorf, 19 January 2016 - Case No. 4b O 120/14, para. I, 4, b, bb
Updated 3 December 2018
28 September 2018 - Case No. 7 O 165/16
The Claimant, IP Bridge, is a non-practising entity holding a European patent (German part) which was declared essential to the wireless telecommunications standard LTE (Standard Essential Patent or SEP) developed by the European Telecommunications Standards Institute (ETSI)  . The previous holder of the SEP in question had made an undertaking towards ETSI according to Article 6.1 of ETSI IPR Policy to make the patent accessible to users on Fair, Reasonable and Non-Discriminatory (FRAND) terms and conditions  .
The Defendant is a German subsidiary of HTC, a company which manufactures and sells electronic devices worldwide, including mobile phones complying with the LTE standard  . The Defendant filed an action for invalidity against the Claimant’s SEP in Germany  .
In December 2014, the Claimant contacted the Defendant’s parent company (parent company) suggesting that the parties entered into negotiations regarding a licence for Claimant’s patent portfolio which also included the aforementioned SEP  . Subsequently, several licensing offers and counter-offers were made by the Claimant and the parent company respectively  . On 29 February 2016, the Claimant sent a letter to the parent company explaining how the LTE standard made use of the technology covered by its SEP inter alia under reference to an attached claims chart  . In response, the parent company confirmed that it is willing to obtain a licence, among others, by letter dated 7 September 2016  . However, no licensing agreement was concluded.
On 27 September 2016, the Claimant brought an infringement action against the Defendant before the District Court of Mannheim (Court) requesting for a declaratory judgment confirming Defendant’s liability for damages arising from the use of its SEP as well as for information and rendering of accounts  .
On 16 February 2018, during the course of the pending proceedings against the Defendant, the Claimant made a further licensing offer to the parent company  . On 11 April 2018, after the parent company had signed a Non-Disclosure Agreement, the Claimant presented existing licensing agreements with third parties concerning its relevant patent portfolio (comparable agreements) to the parent company and requested the latter to respond to its last licensing offer of 16 February 2018 within one week (that is until 18 April 2018)  . This deadline was extended for almost three weeks until 7 May 2018  .
On 15 May 2018, the Claimant extended its claims in the ongoing proceedings; in addition to its already pending claims, it sought for injunctive relief and also requested the recall and the destruction of products infringing its SEP (claims for injunction)  .
With the present judgment the Court ruled that the Defendant is liable for damages arising from the infringement of the SEP in suit  . The Court also ordered the Defendant to render accounts and to provide relevant information to the Claimant  . On the other hand, the Court dismissed the claim for injunctive relief and the recall and destruction of infringing products as being unenforceable for the time being  .
B. Court’s reasoning
The Court held that the products sold by the Defendant in Germany infringe Claimant’s SEP  . Thus, the Defendant is obliged to compensate the damages suffered by the Claimant and the previous holder of the patent in suit  . Since the Claimant has no knowledge of the details required for the quantification of the damages suffered, the Defendant is obliged to provide information on relevant uses (starting from the publication of the patent grant) and render accounts for such uses (starting from one month after the publication of the patent grant)  .
In the Court’s view, the Defendant cannot raise a defence based on a so-called “patent ambush” against these claims  . A “patent ambush” requires that the patent holder deliberately – in terms of a willful fraudulent misconduct – misled the participants in the standardisation process and intentionally prevented the adoption of an alternative technology into the standard  . Insofar, it needs to be established (by the defendant) that the disclosure of the patent during the standardisation process would have led to an alternative structure of the standard, which would have avoided making use of the teaching of the patent in suit; the mere theoretical possibility of an alternative technical solution does not suffice for supporting the allegation of a “patent ambush”  . The Court held that the Defendant failed to establish such fact  . Accordingly, the Court left the question regarding the legal consequences of a “patent ambush” open (obligation to licence royalty-free or just an obligation to offer FRAND licences?)  .
Furthermore, the Court stressed out that the FRAND undertaking given by the previous holder of the SEP in suit has no impact on both the scope and the enforceability of the above claims  .
In the Court’s eyes, the Claimant is bound to the FRAND undertaking made by the previous holder of the SEP in suit towards ETSI  . The wording of Article 6.1. ETSI IPR Policy establishes a respective assumption  . In any case, the assignee of a SEP abuses its market power, if it is aware of the FRAND-undertaking of its predecessor, but, nevertheless, refuses to fulfil the obligations arising from it  . The assignee of an SEP cannot draw benefits from the inclusion of its patent into a standard, without being bound to the FRAND commitment of its predecessor, since the latter enabled the inclusion of the SEP in the standard in the first place  . Indeed, antitrust law and particularly Article 101 of the Treaty for the Functioning of the EU (TFEU) obliges standard development organisations to make the inclusion of patented technology into a standard subject to a FRAND commitment of the patent holder, in order to secure that essential technology will be accessible to users  .
Having said that, the Court made clear that SEP holder’s claims for information and rendering of accounts are not limited by the FRAND undertaking  . Even if one would assume that such undertaking limits the SEP holder’s claims for damages to the amount of the FRAND royalty (which the Court left undecided), the patent holder would, nevertheless, be entitled, in principle, to information regarding the use of its SEP  .
In addition, the Court explained that a FRAND undertaking has also no influence on the enforceability of the claims for damages (on the merits), information and rendering of accounts asserted by the Claimant  . In particular, these claims are not subject to the conduct requirements set forth by the Court of Justice of the European Union (CJEU) in the matter Huawei v ZTEHuawei v ZTE, Court of Justice of the European Union, judgement dated 16 July 2015, Case No. C-130/13. (Huawei requirements or framework) with respect to dominant undertakings in terms of Article 102 TFEU  .
The opposite is, on the other hand, the case with respect to the claims for injunction asserted by the Claimant. These claims are not enforceable for the time being, since the Claimant failed to fully comply with the Huawei requirements  .
Regarding to the SEP in suit, the Court ruled that the Claimant has a dominant market position in terms of Article 102 TFEU: The patent is essential to the LTE standard, which, in turn, cannot be substituted by an alternative standard (from the users’ point of view)  .
Looking at the negotiations between the parties involved, the Court did not see any flaws in the parties’ conduct with respect to the first two steps of the framework; the Claimant had effectively notified the Defendant about the infringing use of its SEP and the Defendant (in fact, its parent company) had effectively declared its willingness to obtain a licence covering also the SEP in suit  . In this context, the Court pointed out that the SEP holder’s obligation to notify the user of the infringing use of its SEP is also met, when the respective notification is addressed to the parent company of the (alleged) infringer (as is was the case here, especially with the Claimant’s letter to the parent company dated 29 February 2016)  .
However, the Court held that the Claimant failed to fulfil its consequent obligation under the Huawei framework, namely to make a FRAND licensing offer to the Defendant (respectively its parent company)  .
The Court considered only two offers made by the Claimant to the Defendant’s parent company prior to the extension of its claims in the pending proceedings on 15 May 2018 (since the other offers made were either indisputably not FRAND or were not produced by the Claimant in trial)  .
An offer made in February 2016 was found not to be FRAND in terms of content, since it contained a clause, according to which the licensee was obliged to pay the full amount of the royalties agreed, even if only one patent of the licensed portfolio was valid and used by the Defendant  .
The Court reached the same conclusion also with respect to the further offer made by the Claimant on 11 April 2018 (that is short before the Claimant extended its claims in the proceedings, adding the claims for injunction)  . The Court held that this offer did not comply with the Huawei requirements, since the Defendant was not given sufficient time to assess the offer and eventually make a counter-offer to the Claimant, before the latter asserted the claims for injunction against him in the proceedings  .
In the Court’s eyes, a licensing offer complying with the Huawei requirements is only given, when the SEP holder provides the SEP user with all information required from assessing the FRAND conformity of the offer  . Only then, the SEP user’s consequent obligation under the Huawei framework to make a FRAND counter-offer to the SEP holder is triggered  . In particular, the SEP holder must make the requested royalty amount transparent with reference to a standard licensing programme implemented in the market or to rates actually paid by third parties to a patent pool, covering also patents relevant to the standard  . For the assessment of the non-discriminatory character of the offer, information on comparable agreements is needed  .
Based on the above considerations, the Court held that the period of 22 workdays between the presentation of the comparable agreements to the parent company (11 April 2018) and the assertion of the injunction claims in the proceedings by the Defendant (15 May 2018) was too short for a competent assessment of the Claimant’s licensing offer  . The fact that the Defendant (and/or its parent company) would have had sufficient time to react to the Claimant’s offer until the end of the oral hearings in mid-July 2018 was considered irrelevant by the Court in this respect  . The Huawei framework aims at preventing the situation, in which the SEP user agrees to unfavourable licensing conditions under the pressure of pending infringement proceedings (defined by the Court as “patent hold-up”)  . In case that the SEP holder has not fulfilled the Huawei requirements prior to the initiation of proceedings (as it was the case here), it has to make sure that the parties can again negotiated without the pressure of an ongoing trial, for instance by asking the court to stay its proceedings pursuant to Article 251 of the German Court of Civil Procedure  . Otherwise, the initiation of the infringement proceedings shall be considered as abusive in terms of antitrust law  . In the present case, the Claimant chose to not ask for a stay in the proceedings, ignoring the Court’s respective indication  .
C. Other issues
The Court explained that the registration in the patent register allows the registered patent holder to assert the patent rights in court  . On the other hand, it does not define the ownership of the patent in material legal terms  . Nevertheless, the patent registration establishes an assumption of ownership which must be rebutted by the defendant in infringement proceedings based on concrete indications  .
Besides that, the Court pointed out that a stay in the infringement proceedings (pursuant to Article 148 of the German Code of Civil Procedure) until the end of parallel invalidation proceedings concerning the patent(s) in suit can be considered only under special circumstances  . As a rule, it must be expected with a sufficient degree of probability that the patent(s) in suit will be invalidated  . The Defendant failed convince the Court that this was the case with the SEP in suit  .
-  District Court of Mannheim, judgment dated 28 September 2018, Case-No. 7 O 165/16, page 2 and 23.
-  Ibid, page 23 et seq.
-  Ibid, page 5.
-  Ibid, page 25.
-  Ibid, page 26.
-  Ibid, pages 5 et seq.
-  Ibid, page 6.
-  Ibid, page 19.
-  Ibid,page 23.
-  Ibid, pages 16 et seqq.
-  Ibid, page 20.
-  Ibid, page 21.
-  Ibid, page 22.
-  Ibid, page 24.
-  Ibid, pages 24 et seq.
-  Huawei v ZTE, Court of Justice of the European Union, judgement dated 16 July 2015, Case No. C-130/13.
-  District Court of Mannheim, judgment dated 28 September 2018, Case-No. 7 O 165/16, pages 22.
-  Ibid,pages 23 and 25.
-  Ibid, page 23.
-  Ibid, pages 23 and 25 et seq.
-  Ibid, pages 26 et seqq.
-  Ibid, page 27.
-  Ibid, page 28.
-  Ibid, page 29.
-  Ibid, page 10.
-  Ibid, pages 10 et seq.
-  Ibid, page 11.
-  Ibid, page 30.
Updated 2 August 2019
Dutch court decisions
2 July 2019 - Case No. C/09/511922/HA ZA 16-623
By letter dated 13 October 2013, the Claimant, Koninklijke Philips N.V. (“Philips”), informed the Defendant, Wiko SAS (“Wiko”), that it holds patents declared essential to the UMTS and LTE mobile telecommunication standards (Standard Essential Patents or “SEPs”) towards the European Telecommunications Standards Institute (“ETSI”). The letter included a list of some of Wiko’s products and invited Wiko to discuss a FRAND licensing agreement  . Wiko did not react to the letter  .
On 19 October 2015, Philips started the present proceedings against Wiko  . On 25 August 2016, Wiko made a counteroffer  . Since 2016, it has also provided information about worldwide units sold and blocked an amount of EUR 895.000 into an escrow account  .
After the present proceedings were filed, Philips brought a further action against Wiko before the District Court of Mannheim (Mannheim Court), Germany (German proceedings). On 2 March 2018, the Mannheim Court honoured Wiko’s FRAND defence and dismissed Philips’ action.
In an interlocutory decision dated 16 April 2019, the Court of Appeal of The Hague (Court) held that the patent in suit EP1 623 511 (EP 511) is valid and that Wiko is infringing this patent  . Wiko claimed that, as this patent is a SEP and Philips has not complied with its contractual duties, Philips is abusing its dominant position by initiating infringement proceedings against Wiko  .
With the present judgment, the Court granted Philips’ request for injunctive relief  , destruction  and the recall of products  , but partly invalidated EP 511, insofar it goes beyond the claims of the second auxiliary request  .
B. Court’s reasoning
German Proceedings and Lis Pendens
Since the Court of Manheim in Germany had honoured its FRAND defence, Wiko argued that Articles 29 and 30 of Brussels Regulation 1215/2012 on jurisdiction and enforcement of judgements (Brussels Regulation) are applicable and that the Court is not competent for the present case  .
The Court rejected this argument, underlying that each national proceedings are based on a national counterpart of a European patent. For each national counterpart, the concerned national jurisdiction is exclusively competent  .
The fact the same FRAND defence has been raised in the German proceedings does not prevent the Court from moving on with its proceedings. The application of Articles 29 and 30 of the Brussels Regulation on cases with same object requires that the filed claims, not the raised defences, are identical  .
The Court concluded that recognition of the Mannheim decision would not affect the pending proceedings, as the patents at stake were not the same  .
Patent essentiality and infringement
Moreover, the interlocutory decision of the Court dated 16 April 2019 confirmed that claims 1, 9 and 12 of EP 511 are implemented in the UMTS standard  .
FRAND negotiations and application of the Huawei steps
Regarding the first step of the Huawei decision, that is the SEP-holder’s obligation to notify the implementer of the patents at stake and the infringement  , the Court underlines that this approach is different than what had been previously decided in a Dutch case prior to the Huawei decision, Philips v. SK Kassetten  .
Moving on to the next step, the Court found that Wiko had not fulfilled its duty as it did not react to Philips’ notification  . The Court, therefore, held that Philips was not obliged to make a licensing offer to Wiko, before starting proceedings against Wiko  .
Philips’ expert explained that the offered rate amounting to USD 1,0 per product (non-compliant rate) and USD 0,75 per product (compliant rate) was justified in view of all UMTS and LTE SEPs  .
However, Wiko argued that Philips’ offer is not FRAND for the following reasons: Philips did not specify that its offer was FRAND compliant and did not explain how the offer was FRAND  .
Contrary to German courts, the Court held that the Huawei steps do not imply a substantiation duty  , but solely the duty to specify the amount of the rate and the way it is calculated  . It bases this reasoning on the fact that the Huawei decision has to be read in light of a previous German decision, the Orange Book Standard decision, where the German Supreme Court decided it was up to the implementer to make a first FRAND offer  . The Court interprets the Huawei decision as requiring the SEP-holder, as it is in a better position to do so, to make a first FRAND offer after the implementer has demonstrated itself to be a “willing licensee”  . But it does not require the SEP-holder to substantiate its FRAND offer and give insights on why he believes the offer is FRAND. The Court also considers there is no duty for the SEP-holder to justify its rate in view of what other licensees are paying  .
Wiko also challenged specific terms of the license, i.e. the suggested duration (until expiry of the last patent), the coupling of UMTS and LTE SEPs, as well as the requested fixed licence fees  . The Court held, however, that Wiko did not provide any evidence to support its position that Philips’ offer is not FRAND  . Additionally, the Court attached importance to the fact that Philips had expressed its willingness to discuss the offer and specific circumstances with Wiko  . Philips had even asked Wiko to make a counteroffer, which the latter did not  .
The Court further pointed out that the fact that there are different terms and conditions with other parties does not necessarily imply that the offer made to Wiko is discriminatory  . It stressed that “non-discriminatory” does not mean that every licensee must be offered the same structure and rate; the “non-discriminatory” nature of an offer depends on the facts and circumstances of the specific case  .
Wiko GmbH, an entity legally independent from other Wiko entities, had made a counteroffer to Philips  . However, the Court did not consider this counteroffer as a counteroffer made by the Defendant of the present proceedings to Philips  .
Besides that, the Defendant had also made a counteroffer to Philips after the start of the present proceedings  . This offer was based on the following estimates: the total number of UMTS and LTE SEPs was 12.000, out of which Wiko estimated that Philips holds 97 families, and the aggregated royalty rate for all SEPs amounted to 12%  . Wiko derived a rate of 0.001% per SEP family and made the following counteroffer to Philips  :
- 0.042% for the compliant rate (EUR 0.027)
- 0.066% for the non-compliant rate (EUR 0.043)
- 0.0315% for past sales (EUR 0.020).
Subsequently, Wiko made a further offer to Philips of 0.084 (which, in Philips‘ eyes, referred to a percentage)  .
The Court held that Wiko’s counteroffers were not FRAND. It found that the counteroffer included too many patents into the total SEPs pool, because it included base station and infrastructure patents, while Philips portfolio was focused on cellphone patents  . Consequently, the Court concluded that Philips held a higher percent of SEPs than estimated by Wiko  . It also highlighted that Wiko did not provide any explanation with respect to a proposed discount of the initially estimated rate of 0.097% and the aggregated royalty rate  . The Court also noticed that, while Wiko stated Philips’ rate should account for the technical and economic value of Philips’ SEPs, this analysis was missing from Wiko’s counteroffer  . It added that Wiko’s counteroffer did not account for the value of Philips’ SEPs in view of other SEPs for the same standard  .
Abuse of a dominant position
The Court held that the Huawei case requires that the facts and circumstances of a case have to be assessed to determine if there is an abuse of a dominant position  . Furthermore, the Court also referred to the decision of the UK High Court of Justice in Unwired Planet v. Huawei to note that the fact that the circumstances of a case diverge from the Huawei scheme does not automatically lead to the conclusion of an abuse of a dominant position, if the SEP-holder, nonetheless, files an action against an implementer  .
The Court expressly pointed out that if starting proceedings is considered as an abuse of a dominant position, then implementers have no incentives to comply with the Huawei steps and can just delay the negotiations  .
With respect to the asserted claims for injunction and recall of products, the Court found that the facts and circumstances of this case were different from the German proceedings, where the Mannheim Court viewed Wiko as a “willing licensee”  .
Wiko did not demonstrate itself to be a “willing licensee”, as it did not react to Philips’ notification, and did not comply with the required Huawei steps. Therefore, the Court rejected Wiko’s FRAND defence and granted Philips’ request for an injunction and recall of products.
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 2.1
-  Ibidem
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 2.2
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 2.3
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 2.4
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 3.1
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 5.1
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 5.4
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 5.3
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 5.8
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.1
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.2
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.3
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraphs 4.5 and 4.6
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.5
-  Huawei v ZTE, Court of Justice of the EU, judgement dated 16 July 2015, Case No. C-170/13.
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.14
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.10
-  Case reference: Court of The Hague, Philips v. SK Kassetten, 17 March 2019, referred to in Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.10.
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.15
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.16
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.27
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.17
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.18 and 4.19
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.18
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.19
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.31
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraphs 4.26, 4.31, 4.32, 4.36
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.36
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.34
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.20
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 2.4
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.38
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.40
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.39
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.41
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.21
-  Court of Appeal of The Hague, judgement dated 2 July 2019, paragraph 4.22