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Law applied: § 19 GWB, § 20 GWB, Art 82 EG, Art 64 Abs 1 EuPatÜbk, § 139 Abs 1 PatG, § 139 Abs 2 PatG, § 140a Abs 1 S 1 PatG, § 140b Abs 1 PatG, § 140b Abs 2 PatG, § 242 BGB, § 259 BGB
Summary:
1. If parties dispute the right to use a method for image coding of digital images according to the so-called MPEG-2 standard, which has been introduced into a patent pool, a claim for granting a compulsory license under antitrust law to the patent in suit may be raised as a defense to the request for injunctive relief. The prerequisite for the dolo-petit objection is that the defendant patent user has applied to the patent proprietor for the grant of a license under reasonable conditions, which usually means that he has submitted a concrete contractual offer to the latter. This concrete license offer, which is objectively in line with the interests of the patent owner, is not dispensable because the defendant has in the meantime ceased its patent infringement activities. (Rn.87) (Rn.88) (Rn.91) .
2. There is nothing contrary to antitrust law in a bundled license offer by the property right owners participating in the standard. They can grant interested parties either a single license to be granted by themselves to the respective property right or a worldwide pool package license to all property rights included in the standard. Furthermore, the patent infringer has no claim to a licensing of all standard property rights limited to a specific territory determined by the infringer with regard to his individual sales territory. (Rn.94)(Rn.100) (Rn.104) .
3. If a parent company and its wholly-owned subsidiary of a group have committed acts of infringement in concert, the subsidiary's isolated offer to enter into the standard pool license agreement may be rejected unless the parent company of the group is also willing to take a license (Rn.113).
4. A license offer may also be rejected if the license seeker refuses to agree on an appropriate remuneration arrangement with regard to infringing acts that have occurred in the past and are not insignificant in terms of their scope. (Rn.119).
5. A demand for a pooled piece license does not in itself constitute an abuse of exploitation, but only if the license accounts for such a high proportion of the cost price of the licensed product due to a market-related price decline that the license seeker can no longer be expected to continue production if he acts in an economically reasonable manner. The decisive factor for the assessment is not the cost and profit situation of the specific license seeker, but a generalized view taking into account the general situation in the business sector concerned. (Rn.131) (Rn.132) (Rn.133) (Rn.134).
6. If the pool standard license agreement does not contain a cap limiting the maximum total license fee, this is also harmless. This applies at least as long as the accumulation of all possible further royalties due to the use of other standards does not result in a royalty amount that exceeds the limit of what is economically reasonable. (Rn.145) .
District Court Düsseldorf, judgment of 11.09.2008 - 4b O 78/07
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