First FRAND defeat for an SEP joint licensing program

Based on a counterclaim filed by the implementer who is defendant in these six cases, the Düsseldorf District Court even awarded damages for non-FRAND conduct by the licensors of the joint licensing program.

The German courts have always been the preferred venue for SEP infringement lawsuits. Some said the German courts were too much on the side of the patent holders. But as the first case to find a pool license not FRAND demonstrates, that is not true; they are looking closely at both FRAND and validity.

The reported cases relate to SEPs that are essential to the implementation of the High Efficiency Video Coding (HEVC) standard, i.e., third generation digital television. There are a number of independent licensing programs that license essential HEVC patents, raising concerns that a situation similar to the licensing of 5G mobile licenses is looming in the digital TV sector. While the EU Commission might have concerns if that were the case, the rulings of the Düsseldorf Regional Court suggest such intervention would be premature if not superfluous.

The written reasons for the verdicts are not yet available. These will provide further information, and it is of course to be expected that the judgments will be the subject of appeal proceedings.

Already now, however, it can be assumed that this case will become part of the FRAND history in the European Union.

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