Donle on the European Commission’s Amicus Brief

Christian Donle has published a short piece titled Amicus Curiae-Eingabe der Kommission zu standardessenziellen Patenten (“Amicus Curiae Brief of the Commission on Standard-Essential Patents”), 19/2024 GRUR 1404-05.  Here is the abstract (my translation):

The Commission has submitted an amicus curiae brief in two parallel SEP infringement proceedings with the Munich Higher Regional Court, and explained its understanding of the CJEU’s decision in Huawei v. ZTE.  This appears to be only the second amicus curiae brief of the Commission in a German judicial proceeding at all, and the potential to affect the judicial practice of the German courts and of the UPC.

The author concludes that, should the CJEU affirm the Commission’s understanding, the German courts’ strict emphasis on the implementer’s willingness to license would become to a considerable extent obsolete; and the focus would shift to whether the offer of the SEP owner and counteroffer of the implementer are actually FRAND.  For previous discussion of the brief on this blog, see here and here.

Also in the same issue is Klaus Bacher’s Die Rechtsprechung des BGH in Patentsachen seit dem Jahr 2023 (“The case law of the Federal Supreme Court in Patent Actions Since 2023”), which (at pp. 1397-99) discusses inter alia the important damages decisions in Polsterumarbeitungsmaschine (on convoyed and springboard damages) and in Verdampfungstrockneranlage (on extraterritorial damages), which I have previously noted on this blog here, here, and here.