Whose Interpretation of Huawei v. ZTE Will Prevail in 2025?

On December 18, the UPC’s Munich Division published its decision in Huawei v. Netgear (available here, in German).   The case has already been discussed in some detail elsewhere (see, e.g., here, here, and here), so I will add just a little here.  Perhaps the most important point to take away is that, unlike the Munich Higher Regional Court’s October 31 preliminary decision in HMD Global v. VoiceAge (see here), but like the UPC Mannheim Local Division’s November 22 decision in Panasonic v. Oppo (see discussion here, as well as recent posts on Kluwer here and here), this decision rejects the EC amicus brief’s interpretation of the CJEU’s decision in Huawei v. ZTE, in favor of the BGH’s interpretation requiring the implementer to manifest its willingness to license throughout the course of negotiations.  The Munich Local Division also doesn’t appear as worried as the Mannheim Division that this interpretation could result in the infringement court not paying adequate attention to whether the SEP owner’s offer is FRAND-conforming.  See p.137, which I translate (rather literally, even though it may sound a bit un-idiomatic in English) as follows:

Furthermore, before the examination of the FRAND-conformity of the patent owner’s offer, it is regular to consider whether the implementer has fulfilled the requisite conditions for the infringement court to engage in this examination.  To the Commission and the Mannheim Local Division it is to be admitted, that under such an understanding the possibility exists, that the infringement court's examination of the offer of the competition-law-bound SEP owner remains completely undone or only cursorily carried out (compare Mannheim Local Division, Decision of 11.22.2024, UPC-CFI-210/2023, paras. 195-98).  This is correct.  But this outcome corresponds to the decision of the CJEU in paras. 66 and 67 [of Huawei v. ZTE].  Conversely, the infringer remains free to enforce its claim for the granting of a license on FRAND conditions, be it grounded in competition or contract law, within the framework of its own claim in an appropriate (competition law) court.  In the UPC, the possibility remains in place for the infringer also to assert a counterclaim for the granting of a license (compare Mannheim Local Division, Decision of 11.22.2024, UPC-CFI-210/2023, paras. 236-41). 

Perhaps 2025 will eventually reveal whether the Commission’s approach, or the approaches followed by the BGH and/or the UPC Local Divisions, prevails.