Law applied:
EPC Art. 64, Art. 69;
Patent Act (PatG) Sec. 10, para. 1, Sec. 139, paras. 1 and 2, Sec.140a, paras. 1 and 3, Sec. 140b, paras. 1 and 3;
TFEU Art. 101, Art. 102, Art. 267 para. 2;
German Code of Civil Procedure (ZPO) Sec. 138, para. 4
Leitsätze:
1. When assessing the willingness to license, the behavior of the user at the time of the conclusion of the negotiations is not the only factor to be considered. Rather, an overall view of the user's behavior is required. (para. 215)
2. The willingness to accept a license must constantly accompany the contract negotiations and find expression in the fact that the user, even if the user is not initially under the obligation to submit a FRAND-compliant offer according to the requirements of the ECJ, constructively cooperates in the conclusion of a license agreement (paras. 213 and 278).
3. An infringer who remains silent for several months in response to the infringement notice thus regularly indicates that it is not interested in taking a license. Even if the infringer may later become willing to take a license up to the limit of forfeiture, a willingness to take a license declared after filing an action must be examined in a special way with regard to the actual willingness to take a license (connection to BGH 24.11.2020 - KZR 35/17, GRUR-RS 2020, 41776 - FRAND-Einwand II). (para. 214)
4. The requirement of a pool license is not per se questionable under antitrust law. (paras. 261 to 264)
Düsseldorf District Court, Judgment of May 11, 2021 – 4b O 83/20 –
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