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Law applied:
TFEU Art. 101, Art. 102
Code of civil procedure (ZPO) § 707, § 719
Summary:
(1) Abuse of the dominant position of a patent owner only follows from the refusal of a requested access to the invention per se or from unreasonable conditions for the requested access from which the patent owner is not willing to deviate even at the end of the negotiations. There is no room for the assumption of an abuse of market power if the user who has been made aware of the infringement and the willingness to license has not clearly and unambiguously indicated that he is seeking a license on FRAND terms (following Federal Supreme Court (BGH), GRUR 2021, 585 - FRAND-Einwand II). (para. 11 - 12).
(2) If a user has failed over a longer period of time to express his interest in a license agreement on FRAND terms and/or has failed to cooperate (further) as required, the defense of a claim for licensing on FRAND terms can only be successful if the user makes additional efforts to contribute to the conclusion of a corresponding license agreement as soon as possible, notwithstanding his failure (connection to Federal Supreme Court (BGH) GRUR 2021, 585 - FRAND Objection II). (para. 12) (para. 21).
(3) If the patent owner has made an (at least essentially complete) contractual offer to the infringer despite the infringer's unwillingness to license, the fact that the patent owner's offer treats the infringer less favorably than other licensees, for example with regard to the amount and the calculation of the license fees, without any objective justification, does not constitute an abuse of a dominant position (connection to Federal Supreme Court (BGH) GRUR 2021, 585 - FRAND-Einwand II). (para. 26).
(4) In the hiring procedure, it cannot be considered "obviously incorrect" if the District Court followed the opinion of the Federal Supreme Court's Cartel Senate on an antitrust law legal question, which confirmed and deepened its specifications on the licensing willingness of the infringer in the decision "FRAND-Einwand" in the knowledge of the opposing opinion cited by the defendants in the decision "FRAND-Einwand II". (para. 15)
Düsseldorf Higher Regional Court, decision dated July 20, 2021 - 15 U 39/21, GRUR-RS 2021, 31565
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