Wednesday, May 6, 2020

A New FRAND Decision in Germany

I just saw a post on Twitter noting this write-up by Martin Koszycki on the Kather Augenstein blog, of a decision by the German Federal Court of Justice (BGH) in Sisvel v. Haier.  The write-up does not link to the decision itself, and I don't see a copy up yet on the BGH's website or on; but according to Mr. Koszycki, the high court reversed the Düsseldorf Oberlandesgericht in finding that Sisvel probably had not abused its dominant position (and thus could seek an injunction, I assume) because (1) Haier had not explicitly communicated its willingness to accept a license on FRAND terms, and (2) Sisvel had not discriminated against Haier.

Update (May 7, 2020):  Mathieu Klos has posted a detailed analysis of the above matter on JUVE Patent.  According to Mr. Klos, the patents in suit are expired, so there will be no injunction.  However, if the court's written decision, which will not be available for a few weeks, "confirms the antitrust senate’s argument, the German patent courts are likely to place much higher demands on implementers in Germany in the future."

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