May 2020

FRAND: Eisenführ Speiser involved in landmark decision before the Federal Court of Justice

The litigation team led by patent attorneys Jochen Ehlers and Dr Désirée Heintz successfully represented our client Sisvel before the Federal Court of Justice. In the appeal procedure Sisvel ./. Haier, the Federal Court of Justice ruled, with decision of May 5th 2020, in favour of Sisvel regarding infringement of a standard essential (mobile communications) patent. The Federal Court of Justice found that the plaintiff was entitled to an injunction despite the defendants having raised a FRAND complaint. The related article by JUVE Patent can be found here.

The decision has been eagerly awaited by many as it marks the first time that the highest German Civil Court had the chance to comment on the well-known decision Huawei ./. ZTE of the European Court of Justice. In Germany, the obligations set out therein with respect to negotiations between patent proprietor and patent infringer have thus far only been adapted by the District Courts (Düsseldorf, Mannheim, Karlsruhe and Munich).

A written reasoning of the decision is still to be published. Following the discussions during the oral hearing it may nonetheless be understood with sufficient certainty that the Federal Court of Justice does not consider the previous landmark decision Orange-Book-Standard outdated, but rather opts for using the decision Huawei ./. ZTE by the European Court of Justice to further differentiate the principles outlined therein. Eisenführ Speiser has also been involved in obtaining the Orange-Book-Standard decision.

The appeal that has been decided upon this week is one of only a few which are pending on the FRAND topic before the Federal Court of Justice. The next case awaiting a decision here will probably be Philips ./. Wiko, in which the plaintiff is represented by Dr Volkmar Henke and Jochen Ehlers. An article on the preceding appeal procedure before Karlsruhe District Court can be found on JUVE Patent here.

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