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  • BGH

Orange-Book-Standard (Federal Supreme Court)

BGH, Judgment of May 06, 2009 - KZR 39/06

Law applied: EG Art. 82; GWB § 20 Abs. 1; BGB § 242 Cd

Summary of the Court:

a) The defendant against whom a claim is made on the basis of a patent may object to the claimant patentee's request for injunctive relief that the latter is abusing a dominant position if he refuses to conclude a patent license agreement with the defendant on non-discriminatory and non-obstructive terms.

b) However, the patent proprietor acts abusively only if the defendant has made him an unconditional offer to conclude a license agreement to which he is bound and which the patent proprietor may not reject without violating the prohibition of discrimination or the prohibition of obstruction, and if the defendant, as long as he is already using the subject-matter of the patent complies with the obligations which the license agreement to be concluded imposes on the use of the the use of the licensed subject matter.

c)  If the defendant considers the license claim of the patent owner to be abusively excessive or if the patentee refuses to quantify the license fee, the requirement of an unconditional offer shall be satisfied by an offer to conclude a license agreement in which the licensor determines the amount of the royalty in its the amount of the royalty at its reasonable discretion.

Federal Supreme Court, Judgment of May 06, 2009 - KZR 39/06

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