Dr Tilman Müller is publishing an essay in the current issue of GRUR (VII/2012) on the development of the anti-trust defence of compulsory licensing in patent infringement proceedings. The paper examines how courts of different instances have received and applied the “Orange Book Standard” guiding decision handed down by the German Supreme Court. The latter decision is generally considered to be a milestone and of paramount importance for international patent disputes among companies in the mobile radio communications industry. It provides a framework within which an infringer of patents essential to a standard can conduct itself if it wishes to avoid being adjudged in patent infringement proceedings.
On closer inspection, however, it has been found that many issues remain unresolved, even after the “Orange Book Standard” decision – for example, does it suffice for the defendant to limit its licence to the patent in suit and to the sovereign territory of Germany, even if it operates internationally and sells the same products worldwide?