OLG Munich’s Written Decision in VoiceAge v. HMD Is Now Out

Here it is, the Judgment of March 20, 2025, Case 6 U 3824/22. in the original German, courtesy of Matthias Leistner.  Dr. Leistner, who holds the GRUR Chair at Ludwig-Maximilians-Üniversität in Munich, will be giving a lecture at the University of Minnesota next Tuesday on FRAND developments in Europe, which I am very much looking forward to.  He also shared with me a copy of his new paper, The Current German SEP/FRAND Practice--An Overview with a Focus on the Sprachsignalkodierer Decision of the Munich Higher Regional Court and Some Thoughts on Possible Ways Forward, GRUR Patent 2025, which I have may more to say about next week or soon thereafter.

Anyway, the OLG Munich's FRAND discussion begins at p.22 (Part VI) of the decision.  As previously reported, based on last month's hearing, the court rejects the European Commission’s approach, as set forth in the Commission's amicus brief, that the Huawei v. ZTE steps must be followed in strict sequence (see pp. 24-25).  The court reasons that if the SEP owner’s first offer is within the FRAND range, there is no need to further consider the competition-law defense, even though further negotiation could result in a lower agreed-upon rate.  Therefore, the court infers, it is only if the offer isn’t FRAND-compliant that one needs to consider the implementer’s counteroffer.  Consistent with other German cases, the court would consider only whether the initial offer was obviously not-FRAND; and the same would be true for the implementer’s counteroffer.  Both parties are obligated only to submit an offer or counteroffer that is, in their good faith, subjective estimation, within the FRAND range.  (pp. 29-31).  If the counteroffer is rejected, the implementer should provide security in the amount of the SEP owner’s last offer.  That last offer can be for a global portfolio license, in which case the security cannot be just for the patent in suit or for Germany (p.34). 

One thing that occurs to me as I read this is that there is something of a range of opinion, globally, concerning what sort of security or interim license the implementer might have to pay pending further proceedings.  Some of the Indian FRAND cases have required the defendant to deposit an amount corresponding to the SEP owner’s offer, whereas the recent U.K. decisions on interim licenses have stated that a reasonable interim license would be midway between the SEP owner’s and the implementer’s last offer/counteroffer.  By contrast, the UPC Munich Division in Huawei v. Netgear stated in dictum (p.137) that the security must be at least in the amount of the counteroffer, while noting that the OLG Munich during the proceedings in HMD in October 2024 had indicated it should be in the amount of SEP owner's offer, but that the matter could be left open since the defendant hadn't provided either.  Dr. Leistner states in his new paper that he believes the middle-way approach would be preferable.