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German courts have decided a number of SEP cases since the CJEU’s judgment in Huawei v ZTE in July 2015, but they continue to struggle with the details of its implementation, says Daniel Hoppe of Harte-Bavendamm.
The Court of Justice of the European Union (CJEU) established important criteria for licensing of standard-essential patents (SEPs) in last year’s Huawei v ZTE judgment. The court provided a framework of rights and obligations for SEP owners and users. On the day of the CJEU’s decision, commentators had already identified a huge number of follow-up questions. As the Lernaean Hydra in Greek and Roman mythology grew at least one new head with every one chopped off, the field of SEPs brings about at least one new question with every one answered.
The case law of the German courts of instance in the last 12 months is testament to this phenomenon. In Germany, more than in other jurisdictions, defendants need to rely on a compulsory licence defence. Four German courts—the Regional Courts of Düsseldorf and Mannheim,and the Higher Regional Courts of Düsseldorf and Karlsruhe—have applied the CJEU’s criteria.
The regional courts generally imposed stricter obligations on the alleged infringer and showed a certain reluctance to stick strictly to the CJEU’s decision. The higher regional courts disagreed on some important points. Overall, the application of the CJEU’s criteria is not consistent.
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Daniel Hoppe, Harte-Bavendamm, SEP, FRAND, Huawei, ZTE, CJEU, infringement, patent, SEP owner, Orange-Book-Standard, Huawei v ZTE,