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Law applied:
TFEU Art. 102
EPC Art. 64, Art. 69
Patent Law Sec. 9 p. 2 No. 1, Sec. 139 (1) and (2), Sec. 140a (3), Sec. 140b (1) and (3)
Summary:
1. a distinction must be made between the infringer's basic (general) willingness to take a FRAND license and its will to comply with specific license terms that have been found to be FRAND. At the level of the license request, only the general willingness to become a licensee is to be verified. The concrete willingness to license, on the other hand, is only at issue once the patent owner's license offer has been identified as FRAND.
2 The request for licensing can therefore be made in a general and informal manner and consequently also implicitly. However, the conduct in question must nevertheless clearly indicate to the opponent the general intention to take a license. A merely verbally expressed request for the granting of a license is therefore not sufficient if the remaining behavior of the declaring party, when viewed objectively, unmistakably testifies to the fact that the request for a FRAND license is mere lip service which is quite obviously not supported by a serious intention to take a license, but rather serves the sole purpose of stalling the patent owner, delaying his legal prosecution and thus being able to continue undisturbed the actions using the patent.
(3) A lack of general willingness to license can also be inferred if the infringer categorically insists that he does not intend to enter into a certain, obviously appropriate licensing model (e.g. a pool license) and instead adamantly demands a bilateral individual license, although he cannot show any justifying reasons for this.
(4) If the patent owner nevertheless makes a license offer in such a situation, this offer - in contrast to a mere lack of willingness to license - is not to be reviewed as to whether it complies with FRAND conditions.
Higher Regional Court, judgment dated May 12, .2022 - I-2 U 13/21
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