German Federal Supreme Court Rejects HMD’s Appeal

In 2024, the European Commission filed an amicus brief in a SEP case, VoiceAge v. HMD, urging the Munich Higher Regional Court to require strict compliance with the sequence of steps laid out in Huawei v. ZTE.  That court rejected the EC’s interpretation, as did the Higher Regional Court a few months later.  (For previous discussion on this blog, see here, here, and here.)  Today, the competition law senate of the Bundesgerichtshof (German Federal Supreme Court) rejected HMD’s appeal.  The press release (in German) is here; I would guess there will be a written decision to follow, at some point.  According to the press release, the Court concludes that, in accordance with the CJEU’s decision in Huawei v. ZTE and the BGH’s two previous decisions in FRAND-Einwand  I  and II, SEP owners are not hindered from enforcing their patents against unwilling licensees; and that the evidence in this case, which includes negotiations dating back to 2019, shows the implementer (HMD) to be an unwilling licensee.  Moreover—and consistent with the FRAND-Einwand  I  and II decisions (which, inter alia, require that implementers demonstrate their willingness to license throughout the entire course of negotiations in order to avoid injunctive relief)—the Court has no doubt that TFEU article 102 does not require strict compliance with the sequence of steps set forth in Huawei v. ZTE, and therefore concludes that it is not obligated to refer matter to the CJEU.  The court further sees no reason to address the appellate court’s requirement that, as part of the Huawei v. ZTE framework, the implementer must post security in the amount of the SEP owner’s offer, because in this case, it states, the security the defendant posted wasn’t even as high as its own counteroffer.