From Around the Blogs: FRAND and Other News from Germany

The Federal Circuit issued a couple of opinions today relevant to damages, but I'll hold off on blogging about those for a day or two to mention the following matters of interest: 

1. On IPKat, Peter Picht and Erik Habich have published a post titled Sisvel v. Haier II:  Further insights on German judiciary's FRAND approach.  Florian Mueller also has published a post on the decision, titled Sisvel v. Haier II:  no patent ambush defense against acquirer of standard-essential patent, Germany's Federal Court of Justice holds, on FOSS Patents; Benjamin Rätz has a write-up on Kather-Augenstein's website here; and Matthieu Dhenne published a post on the Kluwer Patent Blog titled FRAND-Einwand II: Werther and the love of contracts. The BGH's decision itself is available here (in German); the FRAND part begins at paragraph 44 (page 18).  As the posts discuss, the court further elaborates on the themes of Sisvel v. Haier I from May 2020, here holding, among other things, that (1) it is not a requirement that a SEP owner's initial offer be FRAND, but rather that the goal is that a FRAND offer will emerge from good-faith negotiations between both parties (see para. 54), and (2) a defense that the implementer might have against the original SEP owner (here, for possible "patent ambush," that is, failure to disclose the relevant patent before the SSO adopted the standard at issue) is not capable of being asserted against an assignee (see paras. 127 et seq.).  As Mr. Mueller notes, this latter holding in particular (though he expected it) would tend to encourage privateering.  

2. Florian Mueller also has been following the German Parliament's hearing last week on the proposed amendment to article 139 of the German Patent Act (see here and here).  I haven't yet watched the video of the hearing, but from his description it doesn't sound like Germany will be enacting anything more than a statutory recognition of the courts' authority, in rare circumstances, to stay injunctions for a period of time pending design-around (a procedure known in German law as an Aufbrauchfrist, and sometimes translated into English as a "grace period").  Some of the panelists' written submissions, including Professor Ansgar Ohly's (which includes his recently published article Acht thesen zur Verhältnismäßigkeit im Patentrecht ("Eight theses on proportionality in patent law"), 2021 GRUR 304-09), are available here.  

3.  On JUVE Patent, Mathieu Klos published an article titled All eyes on Luxembourg in Nokia and Daimler patent battle, noting that Nokia has withdrawn its appeal from the referral to the CJEU on a host of FRAND-related questions.  Mr. Klos also published an article titled Munich court confirms AAAASI in SEP battle between InterDigital and Xiaomi, recounting the court's decision to prohibit Xiamoi from enforcing an ASI/AAASi issued by the Wuhan Intermediate People's Court (previously noted here).