Position of SEP Owners in Germany Strengthened and Clarified

It clarified the burden of proof by requesting the licensee to substantiate any contested FRAND character of the license offered. Only if this substantiation raises doubts is the licensor required to provide evidence to the fact that his offer is indeed FRAND.

Only in March did the Federal Supreme Court Germany (Bundesgerichtshof) also confirm the validity of the asserted patent (File No. X ZR 44/18).

With this decision the Federal Supreme Court clarified the application of the European Court of Justice’s decision in Huawei vs. ZTE (C-170/13) for Germany as the most popular venue for FRAND cases in Europe. At the same time, it reversed the decision of the Appeals Court Düsseldorf and confirmed the first instance decision of the Regional Court Dusseldorf.

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